Tovarula, Regina v [1973] PGSC 48; [1973] PNGLR 140 (20 June 1972)

Papua New Guinea Law Reports - 1973

[1973] PNGLR 140 - Regina v William Taupa Tovarula

[1973] PNGLR 140

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

WILLIAM TAUPA TOVARULA AND OTHERS

Rabaul

Minogue CJ

2-4 February 1972

7-10 February 1972

14-18 February 1972

21-25 February 1972

28-29 February 1972

1-3 March 1972

6-10 March 1972

13-17 March 1972

20-24 March 1972

27-30 March 1972

5-7 April 1972

10-14 April 1972

17-19 April 1972

1 May 1972

3-5 May 1972

8 May 1972

10-12 May 1972

15-19 May 1972

23-26 May 1972

5-9 June 1972

13-14 June 1972

16 June 1972

19-20 June 1972

CRIMINAL LAW - Practice and procedure - Indictments - Signing and presentation of indictment - Ex-officio indictment where nolle prosequi entered - The Criminal Code (Queensland adopted), ss. 7[cxlvii]¹, 560[cxlviii]², 561[cxlix]³.

An indictment may be signed by one properly appointed officer and presented to the Court by another properly appointed officer under s. 560 of The Criminal Code. The “Governor-in-Council” and the “Crown Law Officer” in that section refer to the Administrator-in-Council and the Secretary for Law respectively. Sections 560 and 561 of The Criminal Code apply in New Guinea notwithstanding the provisions of the Criminal Procedure Ordinance of 1899 (Papua, adopted). R. v. Ebulya [1964] P. & N.G.L.R. 200 and R. v. Dwyer [1967-68] P. & N.G.L.R. 200 followed. (Ruling of 4th February, 1972 p. 144.)

The Crown may present an ex-officio indictment under s. 561 of The Criminal Code against a person committed for trial and previously indicted where a nolle prosequi has been entered against that previous indictment. R. v. Kent; Ex parte McIntosh (1970) 17 F.L.R. 65, R. v. Webb [1960] Qd. R. 443, and R. v. Sutton [1938] St. R. Qd. 285 considered. (Ruling of 7th February, 1972 p. 148.)

EVIDENCE - Criminal Law - Confessions - Admissibility - Judge may read confession to assist in assessing credibility.

When the admissibility of a confessional statement is challenged and the evidence is heard on the voire dire the Court may read the statement to assist in assessing the credibility of the accused and of his interviewer. (Ruling of 14th February, 1972 p. 155.)

EVIDENCE - Criminal Law - Confessions - Admissibility - Discretion to reject confession unfairly obtained - Onus of proving unfairness on accused.

The court may reject a confession made voluntarily on the basis that it was unfairly obtained. The onus of proving unfairness lies on the accused. In exercising its discretion the court must weigh its disapproval of improper police conduct against the public interest in seeing that all relevant evidence for and against the accused is before the court, McDermott v. The King (1948), 76 C.L.R. 501 referred to. (Ruling of 18th February, 1972 p. 156.)

EVIDENCE - Criminal Law - Confessions - Admissibility - Numerous accused - Procedure for dealing with successive voire dires - Ruling on admissibility at conclusion of voire dire.

Counsel for the accused challenged the admissibility of a confession and in the course of the evidence heard on the voire dire attacked the credit of two police officers. He sought leave not to close his case on the voire dire until all voire dires in relation to other accused and involving the same police officers had been heard.

Held

Rejecting the submission, that a ruling on the admissibility of the confession would be given at the conclusion of the voire dire. If further evidence became available the ruling could be reconsidered. (Ruling of 1st March, 1972 p. 173.)

EVIDENCE - Criminal Law - Confessions - Admissibility - Imperative questioning - Exclusion of part of confession.

Part of a confession may be excluded if, as a result of an imperative question, the accused did not fully appreciate that he continued to have a free choice to speak or remain silent. (Ruling of 7th March, 1972 p. 175.)

EVIDENCE - Identity of informants - Cross-examination of police officers as to identity of informants - When discretion to cross-examine to be exercised.

There is no absolute rule that a police officer cannot be cross-examined on the identity of his informants. The court has a discretion in the matter and will allow such cross-examination when the question of whether the police officer had reasonable grounds to make an arrest, is in issue. Marks v. Beyfus [1890] UKLawRpKQB 125; (1890) 25 Q.B.D. 494 and R. v. Richardson [1863] EngR 71; (1863) 3 F. & F. 693 considered. (Ruling of 25th February, 1972 p. 171.)

EVIDENCE - Criminal Law - Confessions - Admissibility - Voire dire - Cross-examination as to credit of police officers not relevant.

In the hearing of evidence on the voire dire on the admissibility of a confession, counsel for the accused sought to cross-examine a police officer to show that he had received but later ignored certain legal advice from the Crown during the course of his investigations.

Held

That as the credit of the police officer was not in issue, the proposed cross-examination was irrelevant to the issues in dispute and would be disallowed. (Ruling of 9th March, 1972 p. 187.)

EVIDENCE - Criminal Law - Confessions - Admissibility - Voire dire - Cross-examination of accused as to credit - Evidence Ordinance 1934-1969 (New Guinea) s. 6 (4).[cl]⁴

When on the hearing of a voire dire to determine the admissibility of a confession, the credit of a Crown witness is attacked and the accused chooses to give evidence, he may be cross-examined as to credit under s. 6 (4) Evidence Ordinance 1934-1969 (New Guinea). R. v. Cowell (1940) 27 Cr. App. R. 191; R. v. Baldwin (1931) 23 Cr. App. R. 62; R. v. Hudson [1912] UKLawRpKQB 98; [1912] 2 K.B. 464; R. v. Cook [1959] 2 Q.B. 340; R. v. Flynn [1961] 3 W.L.R. 907; R. v. Selvey [1968] 2 W.L.R. 1494; R. v. Dawson [1961] HCA 74; (1961) 106 C.L.R. 1 and R. v. Mathews [1965] Qd. R. 306 considered. (Ruling of 12th April, 1972 p. 188.)

CRIMINAL LAW - Practice and procedure - Conduct of trial - New counsel engaged halfway through trial - Whether trial judge who has ruled on credibility on voire dires should discharge himself.

The trial should not be discontinued against an accused because he had engaged new counsel some three months after the trial began and that counsel found it difficult to know what had gone on already.

Where a judge rules on the admissibility of a confession he may have to express an opinion on the credibility of the accused who claims that his statement was not made voluntarily. But no expression of opinion on that matter should prevent the judge from making an open-minded determination of the credibility of the accused if his credibility should be in issue again later nor should it disqualify the judge from deciding the guilt or innocence of the accused. (Ruling of 3rd May, 1972 p. 191.)

CRIMINAL LAW - Offence - Parties to offence - Principals in first and second degree - Enabling or aiding another person to commit an offence - The Criminal Code (Queensland adopted) s. 7.[cli]⁵

Although the terminology differs, s. 7 of The Criminal Code substantially reproduces the common law on principals in the first and second degree. A principal in the second degree is one who intentionally encourages the commission of a crime by word, action or by his mere presence. If presence at the commission of the crime is relied on, as distinct from any act or words of assistance, the presence must be willed not accidental and with the intention of encouraging or assisting the commission of the crime charged.

In some circumstances the fact that a person was voluntarily and purposely present at the commission of a crime and offered no opposition to it, although he might reasonably be expected to do so or at least to express his dissent, might afford cogent evidence that he wilfully encouraged the commission of the crime. R. v. Allan [1963] 3 W.L.R. 677; R. v. Russell [1933] V.R. 59; R. v. Clarkson [1971] 1 W.L.R. 1402; R. v. Howell [1839] EngR 970; (1839) 9 Car. & P. 437; R. v. Coney [1882] UKLawRpKQB 30; (1882) 8 Q.B.D. 534 and Surujpaul v. The Queen [1958] 1 W.L.R. 1050 followed. (Ruling of 5th June, 1972 p. 193.)

Trial

William Taupa ToVarula and thirteen others were jointly indicted for the wilful murder of Errol John Emanuel at Kabaira plantation on the Gazelle Peninsula on 19th August, 1971. Emanuel was then the District Commissioner for the East New Britain District. The trial against one of the accused, Alois Titi, was adjourned because he was not legally represented at the arraignment. The evidence against each accused consisted largely of confessions made to police officers. Eight of the accused challenged the admissibility of their confessions and the evidence on each was heard on the voire dire. His Honour gave a series of rulings on the admissibility of the confessions and incidental evidentiary questions and the most important of these are reported here. His Honour rejected one confession, admitted six others in full and one in part. The Crown offered no further evidence against the accused ToVolo, whose confession had been rejected, and he was acquitted.

At the close of the Crown case, defence counsel submitted that there was no case to answer in respect of ten of the twelve remaining accused. In a ruling on this submission dated 5th June, 1972, his Honour dealt generally with the law relating to accessories under s. 7 of The Criminal Code and then with the case against each accused and found that seven accused had a case to answer and three accused did not. The general part only of his Honour’s ruling is reported here.

In reasons for judgment dated 16th June, 1972, which are not reported here, his Honour found five accused guilty of wilful murder—Taupa as one who aided, counselled and procured the commission of the crime, ToWaliria as the one who fatally stabbed the deceased and ToMarum, ToPait and Kaliop as persons who aided the commission of the offence. The remaining four accused were found not guilty. On 20th June, 1972, Taupa was sentenced to imprisonment with hard labour for fourteen years, ToWaliria for eleven years, ToMarum and ToPait for two years each and Kaliop for eighteen months.

Counsel

F. G. Brennan Q.C. (with him N. Pratt and C. Wall) for the Crown.

J. W. Galbally Q.C. (with him J. P. Barry) and later T. Martin Q.C. (with him P. L. Stein) for the accused William Taupa ToVarula.

E. A. Lusher Q.C. (with him K. J. Carruthers) for the accused Anton ToWaliria.

K. J. Carruthers for the accused Thomas ToGogol.

P. Luke for the accused Joseph ToMarum.

P. J. Moss for the accused Tomano ToVolo.

R. Wood for the accused Lekius ToPait.

J. Hartigan for the accused Francis ToPulumar.

B. Hoath for the accused Aron ToLiplip.

J. Hamilton for the accused Thomas Painuk.

M. Adams for the accused Tolucas ToGuria.

E. Pratt for the accused Otto Kaliop.

L. M. Morris for the accused Clement ToVavaula.

S. Flood for the accused Joseph ToVuvu.

4 February 1972

RULING ON MOTION TO QUASH THE INDICTMENT

MINOGUE CJ: Mr. Brennan of Her Majesty’s Counsel who has appearing with him Mr. Pratt, the Deputy Crown Solicitor in Rabaul, and Mr. Wall, one of Her Majesty’s learned prosecutors from Port Moresby, has presented an indictment to the Court the intent of which is that William Taupa ToVarula and the other 13 persons named therein were to be arraigned upon it. Mr. Lusher of Her Majesty’s Counsel who appears for Anton ToWaliria in effect submitted that the document tendered was no indictment and his submission was adopted by all other defence counsel. Mr. Hamilton, counsel for Thomas Painuk, made in addition an independent submission which I shall deal with hereafter.

Mr. Lusher says first that s. 560[clii]6 of The Criminal Code (Queensland adopted) has not been complied with in that by its terms which are mandatory an indictment must be signed and presented by the Secretary for Law who is by virtue of s. 8a of the Ordinances Interpretation Ordinance 1949-1969 the Crown Law Officer referred to in s. 560. There is no functionary known to the criminal law such as the Acting Secretary for Law who has purported to sign this document before me and I cannot take judicial notice of his existence as a person nor of his holding of such an office. He says in addition that Mr. Brennan is not a person appointed by the Governor in Council or any analogous person or authority in New Guinea or in Papua New Guinea and in any event, even if he were, on the proper construction of s. 560 not having signed the indictment he is not empowered or directed to present it. In his submission the section clearly means that the indictment is to be signed and presented either by the Crown Law Officer or by some other person appointed but that it cannot be taken to authorize the signing by one functionary and the presentation by another.

N1>Further, to meet a course of action which was in fact proposed subsequently by Mr. Brennan he submitted that any purported appointment by the Administrator or the Administrator in Council of a person to sign and/or to present indictments is and would be invalid or a nullity because in Papua New Guinea the Administrator could not be in any way equated to the Governor in Council specified in the section. The Governor in Council was so he said in Queensland the recognized executive arm of government whilst in Papua New Guinea the Administrator was not. The latter was a functionary simply to carry out the orders of the executive arm of government of the Commonwealth of Australia.

N1>The first question to be decided is the proper construction of s. 560. I should state here that in my opinion s. 560 is in force in New Guinea and I did not understand this view to be challenged by either Mr. Lusher or Mr. Brennan, albeit Mr. Hamilton did submit to the contrary.

N1>The first thing to be noticed in s. 560 is that the indictment is a written charge and as s. 1 of the Code shows it is a written charge preferred against an accused person in order to (commence) his trial before some court other than justices exercising summary jurisdiction. Other and detailed provisions in Chapter LX show just what care has to be exercised in framing an indictment and that it has to be framed so that the accused person knows precisely what charge it is that he has to meet. The main intent as it seems to me of s. 560 is that the charge should be reduced to writing. It is understandable that a responsible person must see that the indictment is properly framed and that a court should have the assurance of proper responsibility for its framing and for its presentation, and this as I see it is the object of the enactment of the second paragraph of the section. The emphasis in my view is on the signing and presentation to the court.

N1>In R. v. Edward Tolikun Kision & Ors.[cliii]⁷ my brother Clarkson has categorically expressed the opinion that the second paragraph of s. 560 is to be read disjunctively and that it is not necessary for the indictment to be signed and presented by the same person. This view of course has been strenuously attacked by Mr. Lusher and whilst I have not had the benefit of my brother’s reasoning I have reached the same conclusion. It must be borne in mind I think that the Criminal Code of Queensland was adopted into the Territory of New Guinea in 1921 when the Administration in all its aspects and more particularly in its administration of the law was in a quite rudimentary state. There were many sections of the Code, particularly on the procedural side, which could not have taken effect because of their inapplicability to the circumstances of New Guinea as it then existed. I have long regarded the adoption of the Code as ambulatory by which I mean that as conditions changed, or as some would have it improved, provisions would be able to take effect and form part of the law. It has always been a matter of difficulty to decide upon the applicability of a sophisticated system of law and procedure to what in other days was generally described as a primitive community.

N1>Booth v. Booth[cliv]⁸ will perhaps be regarded as the high point of a superior court’s approach to such a problem. Whilst I am conscious of the oft-repeated view that penal statutes must be construed strictly against the Crown I am equally conscious that in construing legislation designed for a sophisticated community which is adopted into a developing country without any other qualification than its applicability to the circumstances of that country one should have regard to the idea expressed in the maxim ut res magis valeat quam pereat. And it seems to me that the intent of the second paragraph of s. 560 is that the indictment shall be both signed and presented to the court by a responsible person. In my view it is an elliptical expression of a direction that such indictment should be signed and presented to the court by one or other of the classes of person mentioned in the paragraph, and it is not intended to direct that the person who signs must be the one who presents.

N1>It is curious that there seems to be no authority on the construction of this part of the section in Queensland which is the fons et origo of the Criminal Code, but I am prepared to assume that the point has never been thought worthy of notice. My recollection of the Victorian practice, which I must say is somewhat dim, is that the presentment which is the Victorian equivalent of the Queensland indictment begins with the words “the Attorney-General of Our Sovereign Lady the Queen presents” and that presentment was usually signed and presented to the Court by a Crown Prosecutor.

Despite Mr. Lusher’s powerful argument I am not persuaded that if the indictment is valid in the other substantial respects required by Chapter LX the fact that it has been signed by one responsible officer of the Crown and presented by another should result in the document being held to be a nullity and the body politic, to say nothing of the person or persons intended to be arraigned, being put to the expense and disturbance of beginning de novo. In my view the second paragraph of s. 560 is to be construed disjunctively with a result that it is sufficient if the indictment is signed by one of the persons mentioned in the paragraph and presented by the other.

What I have said does not dispose of the other matters of substance urged upon me by Mr. Lusher. I now turn to deal with the argument that even if the indictment be presented by Mr. Pratt who as has been pointed out to me was appointed to sign and present indictments by the Administrator in Council such presentation would be of no effect because the Administrator in Council can in no wise be related to the “Governor in Council” mentioned in the section.

In my opinion Mr. Brennan’s riposte to this argument is sound. Section 17 of the Laws Repeal and Adopting Ordinance 1921-1952, which enacts that all or any references to “authorities, persons” in any act or statute law adopted by the Ordinance shall be taken as referring to corresponding or analogous “authorities, persons” in the Territory is I think conclusive. Again I have in mind the ambulatory character of adopted legislation in Papua New Guinea, and whilst in 1921 the authority referred to in s. 17 in its application to s. 560 would no doubt be the Governor-General in Council, with the constitutional development and changes which have occurred over the past 50 years I have no doubt that the analogous authority in 1970 was the Administrator in Council, and that Mr. Pratt was properly appointed to sign and/or present indictments.

I turn next to the argument that the Acting Secretary for Law is not a person who can sign a presentment and that I cannot take judicial notice of the existence of Mr. Kearney nor of his holding the office of Acting Secretary for Law. On this matter despite Mr. Lusher’s objection I allowed evidence to be given both as to Mr. Kearney’s signature and as to his appointment. Evidence with regard to the latter consisted of a copy of a letter of resignation by Mr. Curtis the former Secretary for Law, the acceptance of that resignation by the Minister for External Territories and an appointment to the position of Acting Secretary for Law by the Acting Chairman of the Public Service Board purportedly in accordance with the terms of the Public Service Ordinance. No point was taken as to these latter documents being copies and not originals. Mr. Lusher submitted that notwithstanding those documents the appointment had not been properly proved in that the Acting Chairman of the Public Service Board’s authority was not also proved. However, in my view this is a proper case for the application of the maxim omnia praesumuntur rite esse acta and no suggestion or evidence being forthcoming that the Acting Chairman was not acting properly and it being shown to me that Mr. Kearney had styled himself the Acting Secretary for Law and was purporting to act as such I held that he was properly appointed.

There remains the major question as to whether he is the Crown Law Officer for the purpose of s. 560. In my opinion he is. I reached this conclusion because of the provisions of s. 32 (2) of the Ordinances Interpretation Ordinance 1949-1969. I am clearly of opinion that Mr. Kearney is the holder for the time being of the office of Secretary for Law, that there is no other person who can be thought to be the holder of such office and that therefore the power to sign indictments may be and the duty to sign must be performed by him.

In the result I hold that the fact that the indictment has been signed by Mr. Kearney, the Acting Secretary for Law, and presented by Mr. Pratt is a proper compliance with s. 560.

This leaves still unresolved the submission made by Mr. Hamilton which as I understood him was to the effect that neither s. 560 nor s. 561 of the Code have any application in the Territory of New Guinea because of the survival or continuing application of the provisions of ss. 12 and 18 of the Criminal Procedure Ordinance of 1889 of Papua as adopted into New Guinea and subsequently amended.

I have already stated that I adhere to the views which I expressed in R. v. Ebulya[clv]⁹. Those views of course dealt only with s. 561. But being of opinion as I am that the circumstances of the Territory of New Guinea are such that both ss. 560 and 561 are applicable I cannot see any room for the operation of s. 18 and I would so hold. In the result Mr. Hamilton’s argument cannot succeed.

N1>Accordingly I hold that the document tendered by Mr. Brennan can be presented to the court as an indictment.

FURTHER RULING ON MOTION TO QUASH THE INDICTMENT

I propose to rule now on the matter which has just been argued. Mr. Lusher has properly reopened a matter that was debated yesterday and previously. It is with regard to the authority of Mr. Kearney to sign the indictment presented before me as Acting Secretary for Law, and in support of his further submission he has called Mr. Wicks, the Acting Chairman of the Public Service Board, to give evidence so far as he can as to the manner of Mr. Kearney’s appointment. I do not propose to go through the various arguments adduced before me but I would propose to rule that in my judgment Mr. Kearney’s appointment as Acting Secretary for Law is a valid one and that the members of the Public Service Board although not assembled together in a meeting have effectually delegated to Mr. Wicks the power or authority to appoint an acting head of department. Accordingly, I would hold that Mr. Kearney is the Crown Law Officer for the purpose of either s. 560 of The Criminal Code (Queensland adopted) or s. 12 of the Criminal Law Procedure Ordinance of Papua adopted into the Territory of New Guinea. I accede to Mr. Brennan’s argument that in any event there is another source of power available to Mr. Kearney and that is the appointment of him by the Administrator in Council in December 1970 to sign and present indictments to the Court. I have considerable doubt as to the exercise of power by the Minister pursuant to s. 30 of the Papua New Guinea Act and I am not satisfied that the power has, in fact, been exercised in this case on the material before me. That means that I reiterate the view which I expressed previously that the indictment is properly presented.

That leaves me then with the matters unresolved which were debated on Friday last, the other matters relied upon by counsel—Mr. Lusher in particular and generally by all counsel for the accused. The indictment was said to be bad in a number of respects and should be quashed. Before ruling on the submissions which he and other counsel have made it is necessary that I should set out the agreed facts upon which these submissions are based. These are as follows.

Before the District Court some twenty-one persons including the fourteen persons appearing named in the indictment were charged with the wilful murder of Errol John Emanual. Evidence was taken with a view to their committal for trial upon that charge and the magistrate at the conclusion of the evidence committed the fourteen persons named in the indictment for trial and so committed them in custody. The other seven persons were discharged from custody.

On 16th December, 1971, Mr. W. J. F. Kearney as Acting Secretary for Law signed an indictment charging nine of the present accused with wilful murder, each of these nine persons having been committed by the District Court. On 17th December, 1971, the same Mr. Kearney as Acting Secretary for Law signed an indictment charging Francis ToPulumar and 8 others with wilful murder. Five of these persons had been committed by the magistrate and the other four had not. In fact they had been discharged. This indictment was presented before the Supreme Court at Port Moresby on 22nd December, 1971. Application was made for the arrest of the four persons who were not then in custody. On 26th January, 1972, Mr. Kearney as Acting Secretary for Law signed a nolle prosequi with respect to the five persons whose names appeared in both the second indictment and in the nolle prosequi. The nolle prosequi was expressed in these terms:

“William John Francis Kearney, Esquire, duly appointed to prosecute in this behalf, says that he will not further proceed against Francis ToPulumar, Aron ToLiplip and Thomas Painuk all of Meilivuan and Alois Titi of Rasimen and Otto Koliop of Volavolo upon an indictment dated the seventeenth day of December One thousand nine hundred and seventy-one whereby the said Francis ToPulumar, Aron ToLiplip, Thomas Painuk, Alois Titi, Otto Koliop and others on the nineteenth day of August One thousand nine hundred and seventy-one in the Territory of New Guinea wilfully murdered Errol John Emanuel.”

Mr. Lusher’s first submission was that the indictment before me is an ex officio indictment which must rely for its validity on s. 561 of The Criminal Code. Although in fact no nolle prosequi had been filed in relation to the persons named in the original indictment the Crown by not proceeding on that indictment (which followed the committal) had in effect abandoned it and did not seek to rely upon it any further. As the Crown had filed a nolle prosequi in relation to the remaining five the indictment in relation to them which could be thought to be permissible under s. 560 of the Code was spent and the only justification for an indictment including five of the persons named in that particular indictment would have to be s. 561.[clvi]10 He then went on to submit that s. 561 was not part of the law of New Guinea, and consequently the attempt to present an indictment under this section was nugatory and the indictment was bad. Upon reflection and after having reread the reasons for judgment delivered in R. v. Ebulya[clvii]¹¹ and also having read the views expressed by my brother Frost in R. v. Dwyer[clviii]¹², I adhere to the views I expressed in the former case that s. 561 is part of the law of New Guinea and consequently I reject Mr. Lusher’s submission.

N1>Should I be wrong in the view I have taken of the applicability of s. 561 and if s. 12 of the Criminal Procedure Ordinance of 1889 (Papua adopted) is the ruling section, it seems to me that subject to what I shall say hereafter as to the joinder of charges there is nothing in the latter Ordinance which in the events that have happened prevents the presentation of this indictment.

N1>At this point I should deal with a related but somewhat different submission made by Mr. Hamilton for Thomas Painuk. This accused was one of the persons named in the indictment presented before my brother Kelly in Port Moresby on 22nd December, 1971, and in respect of whom a nolle prosequi was filed. Mr. Hamilton’s submission was that on the proper construction of the Criminal Code committal proceedings having taken place and an indictment having been signed and presented against his client the Crown had exhausted its powers. In his submission the Code provided for committal proceedings, for those proceedings to be considered and for an intention to be formed by the Crown Law Officer or some other person appointed in that behalf by the Governor in Council or his New Guinean equivalent to put the person committed on his trial, for the intention to be carried into effect by the reduction of a charge to writing in an indictment and for the presentation of that indictment. That having been done (as was the case with Thomas Painuk) there was no legislative warrant for the Crown to present any further indictment. Section 561 he said did not assist the Crown because the purpose of that section was either to enable it to present an indictment against a person who had not been committed for trial or to present him for an offence different from that upon which he had been committed by the magistrate but one none the less disclosed by the evidence in the committal proceedings. Whilst the filing of a nolle prosequi did not operate as an acquittal it did operate to exhaust the Crown’s rights and powers in relation to a citizen who had been the subject of committal proceedings. Despite Mr. Hamilton’s attractive argument I do not agree with the view propounded by him as to the law and I think Mr. Brennan for the Crown was right in his submission that there is nothing in the Code to restrict the Crown in the way suggested.

N1>I have already referred to a useful and indeed valuable review of the procedural matters dealt with in this case contained in the judgment of Mr. Justice Fox in R. v. Kent; ex parte McIntosh[clix]¹³ and in particular where in dealing with s. 53 of the Australian Capital Territory Supreme Court Act, he surveys the relevant legislation of the various States. He deals with the Queensland situation and refers to both the case of R. v. Webb[clx]¹⁴ to which I have been referred, and to the case of R. v. Sutton[clxi]¹⁵ in which Mr. Justice Henchman, with whom the other two members of the court agreed—that is, the Court of Criminal Appeal of Queensland—said: “As far as I can see, that provision is universal in its terms and applies to all indictable offences throughout the Code, and is not in any way limited, as has been suggested, to cases where, without any sort of preliminary inquiry, an accused person may be indicted by a Crown Prosecutor.” In my view whilst generally speaking Mr. Hamilton’s submission with regard to s. 561 expressed the position and practice generally appertaining in Queensland there is nothing in that section to prevent the presentation of an indictment such as I have before me in the circumstances which I have earlier set out.

N1>At this point it would be convenient to deal also with a submission made by Mr. Flood in relation to his client that the indictment should be quashed because the committal proceedings upon which it was based were bad. They were bad he said because the record of those proceedings showed that apart from there being an interpreter to interpret from English to Kuanua for one Clement ToVavaula the evidence was interpreted for the remaining defendants in the committal proceedings only from Pidgin English to English and this offended against the requirement of the District Courts Ordinance that evidence was to be given in the presence and hearing of the person or persons charged. It followed that the evidence must be intelligible to that person or those persons. Pidgin he said was not a language which could be said to be intelligible to his client. However, it was not suggested that any evidence would be put before me that this was the case and as on my inquiry it appeared that his client Joseph ToVuvu was represented at the District Court hearing, that there was no objection to the interpretation, and as the magistrate who conducted that hearing is an experienced magistrate in this country, I have no hesitation in rejecting this submission, basically on the ground that failing some evidence to suggest to the contrary I must assume that the proceedings were properly conducted.

N1>The next submission made by Mr. Lusher as I understand it was that where there are a number of persons charged in the same indictment with committing a single crime they can only be so charged if they can be brought within the provisions of ss. 7 and 569 of the Code. Neither of these sections makes any reference to abetting or to being directly or indirectly knowingly concerned in the commission of an offence. Whilst the indictment used no such words the particulars supplied in respect of some of the persons named therein specified that they abetted and were directly or indirectly knowingly concerned in the murder of Mr. Emanuel. Whilst as I understand the situation it will be alleged that Mr. Lusher’s client was the person who actually caused the death of Mr. Emanuel, this submission was supported by all other defence counsel. It was said that the wording in the particulars is directly taken from s. 5 of the Commonwealth Crimes Act, which I note is applicable to this Territory. Be that as it may I do not think that the presence of such words in the particulars supplied warrants my striking down the indictment. In any event I would have thought the presence of such words to be surplusage and I cannot imagine any person coming within the provisions of s. 7 unless it could be said that he knowingly took part in the activities therein described, and I would also have thought that s. 7 was wide enough to provide for direct or indirect participation.

I would also reject Mr. Lusher’s submission that the indictment being a joint indictment must result in either a conviction of all persons named therein or an acquittal of all. I am content to adopt the words of Philp J. in R. v. Warry and Kelly[clxii]¹⁶, viz: “I should agree that where persons are properly jointly indicted the indictment is joint and several in relation to the joint offence so that for example the principal could be convicted and the accessory acquitted but I should not think that the indictment was several in relation to an offence other than the joint offence.”

N1>This brings me to Mr. Lusher’s final submission that the indictment before me seeks to put into the one indictment against a number of persons a multiplicity of charges. I agree with the submission of Mr. Brennan that in this case there is one offence charged and that is the wilful murder of Errol John Emanuel. To that offence there can be many parties each of whom may take a different role; for example, the doer of the act, the person who does something to enable the act to be done, the person who counsels or procures the doing of the act. And it is clear to me that under the provisions of the Criminal Code all such persons may be charged in the one indictment with actually committing the act which is the subject of the charge, that is the wilful murder. Accordingly I reject the submissions made.

N1>I should add that I do not wish to take time to comment on the suggestion somewhat faintly made that the indictment was calculated to prejudice or embarrass any of the persons named therein in his defence to the charge. I do not think such a case has been made out.

N1>The final matter with which I must deal is one which I deferred on Friday last and that is the question as to whether I should accede to the application to adjourn the trial in respect of the accused man Alois Titi. Good grounds have been made out for such an adjournment but Mr. Lusher powerfully urged upon me that I should not do so for two major reasons. The first of these was bound up with his argument in relation to persons jointly indicted and I have already expressed my view that this argument must be rejected. The second has given me greater cause for concern, and it is that if I remove Alois Titi as a defendant in this trial Mr. Lusher’s client may lose a possible advantage, should Titi subsequently elect to give evidence, of counsel not being able to elicit from him material favourable to his client. Other counsel urged similar considerations upon me in relation to their own clients. Upon reflection I have decided not to accede to this submission and to grant the application for adjournment. The advantage claimed to be lost is at this stage only a possibility and whilst I would be most reluctant to take any course which could possibly prejudice an accused person in the conduct of his defence I do not think that the granting of the application has been shown to me to be likely to have that prejudicial effect. It is open to any accused person to call Alois Titi as a witness. True it is that as such a witness he would be advised of his right to protection against self-incrimination. But nothing has been shown to me which would lead me to the view that being called as a witness would or could preclude him from giving evidence favourable to the party on whose behalf he may be called. Of course at the present time I know nothing of the facts of this case nor of the evidence which Titi may be able to give. Were he to remain in the trial and not elect to give evidence of course no possible advantage could be obtained by the other persons accused. And if it should appear during the course of the trial that a miscarriage of justice could occur because of the absence of Titi then that situation can be dealt with when and if it arises. Accordingly I grant the application and remand Alois Titi for trial at the next sittings of this Court.

RULING ON READING A CONFESSIONAL STATEMENT TO HELP DETERMINE ITS ADMISSIBILITY ON THE VOIRE DIRE

It is obvious that at this stage there is a great conflict of fact as to what did happen on the Tuesday morning in the police station, or I should say not only on the Tuesday morning but also on the preceding Sunday at the Rabaul police station and, of course, the conclusion that I come to in attempting to resolve that conflict of fact should assist me greatly in ultimately deciding whether the confession should be admitted or the record of interview should be admitted as evidence in the case. However, that is not the matter with which I am dealing at this moment. The matter with which I am dealing is whether I should look at the statement to assist me as it is submitted by the Crown that it will assist me in coming to a conclusion as to who is to be believed. The Crown’s submission is that the form and content of the statement will assist me in assessing the credibility of the parties concerned in this conflict.

It has been urged upon me with great force by both Mr. Galbally and Mr. Lusher and their submissions have been supported by all other defence counsel presently at the bar table, that the authorities say that I should not look at that statement for the purpose for which it has been submitted. This is a question which has caused me some concern. I took a view on Friday last that I was entitled to look at the statement. I have heard argument subsequently and in the result I remain of the view that I had on Friday, that I am entitled to look at the statement for the limited purpose for which it has been submitted, making it quite clear of course that the content of the statement at this stage, even though I do look at the statement, is not admissible into the trial itself. It may be that it will not assist me greatly. I do not know because I do not know in what precise form the statement is or what procedure the questioning followed but in the resolution of this very difficult problem, what I regard as a very difficult problem of credit, I would seek to have every bit of assistance that I can get and I accept the Crown’s statement that this may give me some assistance. For those reasons I propose to examine this statement and to take it in as part of the material on the voire dire.

I should add perhaps as the remarks of Mr. Justice Dixon in McDermtott’s case[clxiii]¹⁷ were urged upon me in respect of the defence submissions, that I do not really think that Mr. Justice Dixon had this particular sort of problem under consideration when he made these remarks. He was in fact saying that the court should look at all the circumstances when deciding whether it is up to his discretion to reject a statement because of some alleged police impropriety. Indeed, I would regard this statement as being part of the general circumstances.

18 FEBRUARY 1972

RULING ON ADMISSION OF TAUPA’S STATEMENT

In his opening address Mr. Brennan outlined the case for the Crown under what appeared to be some difficulties. He began by relating events of the morning of 19th August, 1971, which in their turn began with the arrival of a Mr. Moorhead at what is known as the Kabaira Plantation of which he was the manager. There he found a number of men cutting grass on what in his view was plantation property. It was said to me (although as yet I have no evidence on this point) that Mr. Moorhead rang the police with a request that the District Commissioner, Mr. Emanuel be informed of the then situation at Kabaira. Some time before 9.30 a.m. the District Commissioner arrived at Kabaira with Superintendent Feeney and some police. Again although as yet I have no evidence on this point it was opened that after the District Commissioner and the Superintendent arrived at Kabaira and after their spending some short time in search of a man named ToGigie, they returned to find the accused Taupa and some 10 or 11 others just forward of a reserve on the lefthand side of the track leading into the Kabaira Plantation from the main coast road.

Mr. Brennan then went on to say that evidence would be led to show that the District Commissioner had touched Taupa under the arm and said words to the effect of “Let us go and talk”, that the two of them had walked up the track to a track junction and then turned to the left still following the main track, after which they disappeared from view. Subsequently after argument I ruled that the depositions of Mr. Moorhead who is now dead should be read subject to just exceptions as to the admissibility of their contents. So far these depositions have not been read as Mr. Brennan announced that he would seek their reading at or about the time that Superintendent Feeney gives evidence of the events which had been opened.

In the further course of his opening address Mr. Brennan referred to statements allegedly of a confessional nature which had been made by all of the 13 accused persons now before me. A minor part of the material in the statements was opened but I was informed that some of, perhaps indeed all of, defence counsel had requested him not to open the contents of these statements the admissibility of which was to be contested. In the result I was not able to form a clear picture of the part which the Crown would allege was played by each of the accused beyond its statement that it would eventually be asserted that each of them played such a part that it would be proved that he was guilty by reason of the provisions of ss. 7 and 569 of the Criminal Code (Queensland adopted). The confessional statements would show the part that each man played in the tragedy which was enacted that morning, and whilst each such statement would not provide evidence against any other actor it would enable me in seeing the part that each such man played to piece together the totality of the drama.

Counsel for the Crown very properly met head-on the difficulties which were apparent and began by seeking to lead evidence of inculpatory statements made by the first person appearing on the indictment, William Taupa ToVarula, whom I shall hereinafter refer to as Taupa. I have already admitted in evidence statements by or conversations with Taupa which were made or held on Friday, 20th August, Saturday 21st August, Sunday 22nd August. So I now come to a statement allegedly made on Tuesday 24th August.

But first I deem it necessary to set out certain material facts which have so far been made out. Taupa was apprehended by the police concerned in the investigation into this crime at about 6.30 a.m. on Friday 20th August, 1971. He was then in the vicinity of his village of Rasimen. In his possession there was a return airline ticket entitling him to travel to Port Moresby and back to Rabaul issued for a flight leaving Rabaul on that day, 20th August. This flight had been arranged by the medical authorities at Nonga and arranged to enable him to appear as an appellant at a Public Service Appeals Board hearing at Port Moresby on 23rd August. A copy letter which was also found in his possession showed that he was to appear before such a board presided over by a Judge of the Supreme Court which was to consider his appeal against dismissal from the Public Service. He was eventually that morning (i.e. Friday) taken to the police station at Rabaul where he was interviewed by Sub-Inspector Baker at about 2 o’clock in the afternoon. During the course of that interview what he said was taken down on the typewriter by the Sub-Inspector. The gist of his statement is that at the plantation Mr. Emanuel suggested that they talk together, that the two of them walked up what I shall call the main plantation track, then turned left down the same track forming the northerly border of what was described as a native reserve in which was situated the village of Rasimen, that Taupa was frightened, that he rapidly walked ahead and eventually disappeared out of sight of Mr. Emanuel and thereafter neither saw nor heard anything relevant to Emanuel’s death. This recital of events was of course on its face completely exculpatory.

At about 6.15 p.m. he was charged with riotous behaviour. The charge was based so it was said to me by Sub-Inspector Baker on information which he had from Superintendent Feeney as to Taupa’s confrontation with the Superintendent on his arrival and, more particularly, on the actions of unidentified persons who from the shelter of the dense growth in the native reserve were throwing stones at the police party which was viewing the body of Mr. Emanuel.

I have omitted to state that Sub-Inspector Baker saw the body of Mr. Emanuel on this second track to which I have referred when he arrived with a police party which had been summoned obviously some time after Mr. Emanuel had been killed. I should also add that Dr. Beatty, the Superintendent of the Nonga Base Hospital, arrived at the place where the body was found at about 10.45 a.m. and he then and subsequently examined the body. The examinations showed that a mortal wound had been inflicted by a sharp instrument of a breadth of about 2 ½ centimetres. The point of entry was in the seventh inter-costal space and the length of penetration was in the vicinity of 20 centimetres.

After Taupa had been charged and apparently before he was put into a cell at the Rabaul police station he was spoken to by Sub-Inspector Kneebone. The latter informed him that he had been told that it was the accused ToWaliria who had actually killed Mr. Emanuel, and then asked him was this correct. Taupa replied that it was true. On the following morning Taupa was taken to the Livuan police station which is not far from the Kabaira Plantation where in a line-up he identified ToWaliria, and then to the plantation where he gave a demonstration of his walking down the track with Mr. Emanuel. He was then returned to the cell at Rabaul. I should add that he also gave a demonstration of the way in which ToWaliria had come out of the bush and stabbed Mr. Emanuel in the right side. It seems that this cell was a single cell, the dimensions of which were 6'6” by 12' with a height of 8'. This was adjacent to a larger cell measuring 12' by 20'.

On the morning of Sunday 22nd August, Taupa was again shortly questioned by Sub-Inspector Baker at the police station at Rabaul as a result of which questioning he agreed that the place where Mr. Emanuel was killed was different from that which he had demonstrated on the previous day. He was told that ToWaliria had shown to the police officers a different place which was near where a road or track goes down from the main track to the copra dryer. This is the same road or track as leads to Rasimen village. ToWaliria he said was correct and he, that is Taupa, had lied. He was then returned to his cell where he remained until Monday morning, 23rd August when he with a number of others (probably about 20 people in all) was brought before the resident magistrate then sitting at Rabaul. No attempt was made to advise him of any rights he might have had as to bail. When he was charged at 6.15 p.m. on 20th August Sub-Inspector Baker noted in the Charge Book opposite the particulars relating to him the words “not to be released on bail under any circumstances”. This notation had the approval and I am inclined to think authority of Inspector Bell, the Officer-in-Charge of the Criminal Investigation Branch at Port Moresby, who had arrived in Rabaul on the afternoon of 19th August to take charge of the investigation into the death of the District Commissioner.

A staff memorandum issued from the police station at Rabaul on 30th October, 1967, contained a short paragraph with regard to bail in which it was stated that bail is a right and the onus is on the tribunal refusing bail to show good cause for any refusal. In ordinary times the memorandum stated that there are two and only two proper grounds for a refusal of bail, viz: (i) the likelihood of the person absconding; (ii) the likelihood of his release impeding the course of justice by leading to an intimidation of or tampering with witnesses, disposal of the corpus delicti or the avoidance of arrest by a fellow offender.

A station instruction issued on 27th November, 1970, at Rabaul contained the following directions:

N2>“1.      Whenever possible arrested persons should be granted bail if requested. When the offence with which he is charged is such that there is no likelihood of the offence continuing, no persons would be endangered by the release of the offender and there are reasonable grounds to believe that person would attend Court at the time nominated or should he fail to do so then he can be easily located.

. . .

N2>3.       Common street offences such as offensive behaviour, obscene language, drunk, drunk and disorderly the offenders can normally be bailed for a reasonable cash amount. In the cases where liquor is involved then a minimum period of holding prior to bailing should be four hours. Intoxicated persons should not be bailed.

N2>4.       Offences involving violence i.e. unlawfully strike, assault, unlawfully lay hold, riotous behaviour etc. must be treated on their merits. Consideration should first be given to the victim then the public in general and lastly the offender. If any person’s safety cannot be guaranteed then the offender should remain in custody until the first available court hearing.

. . .

N2>7.       The more serious offences under the Code must be treated on their merits. Things to take into consideration are:— Is the person a property holder? Is he in permanent employment? Is there any likelihood of the offender absconding? Should you consider bail could be applied and after consultation with one of the Officers mentioned in para. 5 a substantial cash bail should be applied together with a cash surety of a similar amount from a responsible citizen.”

Obviously very little or no regard was paid to this instruction and it is clear to me that any application for bail would have been refused and if it had been made at the police station would have necessitated an application to a magistrate. I am satisfied that such an application was never considered by any of the police officers concerned and I am equally satisfied that the accused Taupa was unaware of any rights he might have had in this regard. All of the police evidence touching on this subject was to the effect that it was normal practice if a person were arrested on a Friday evening or at any time during the weekend for him to be brought before a magistrate on the Monday morning. Because of the pressure of business in the District Court at Rabaul if there was no plea of guilty to a charge made a remand would be in fact automatically granted. I am satisfied that in the case of Taupa and the other persons who were charged with riotous behaviour (I should mention that by Monday morning two persons had been charged with the murder) because of the events at Kabaira Plantation on 19th, bail would have been vigorously opposed had it been requested. In the case of Taupa the effect of Mr. Baker’s evidence was that he would have strongly opposed any application for bail; firstly, because Taupa had an airline ticket in his possession and if he managed to get to Port Moresby there would have been difficulty in ensuring that he returned to Rabaul, secondly, that it was thought that Taupa might well have interfered with potential witnesses who might have been able to throw some light on the murder, and thirdly, that he was wanted for further questioning in relation to the murder of Mr. Emanuel.

I am not impressed with the first of these reasons because any sort of calm inquiry would have shown that Taupa had a legitimate reason to go to Port Moresby and it has not been shown to me that there would be any particular difficulty in apprehending him should he not answer to bail. However, it is the second and third which I am satisfied were the substantial cause of the police attitude.

On Monday morning before Taupa and his co-defendants appeared in the District Court, Mr. John Kaputin who had but a few days since returned to Rabaul went to see Superintendent Feeney for the purpose as he said of asking him whether legal representation could be arranged for the men then in gaol in relation to the Kabaira Bay trouble, and whether he could speak to these people whilst they were in custody. To the first of his inquiries the Superintendent said that the matter of legal representation was one for the people concerned and to the second he refused permission. As I understand Mr. Kaputin he did not then know who were the men charged but he “discounted” the Public Solicitor as being of use in the situation and he regarded himself as having a duty to all people in Papua and New Guinea to interest himself in this case because he also had no confidence in any other legal representation in Rabaul. The same morning he sent off a telegram to some person or persons unspecified in Australia inquiring about the possibilities of legal representation for the persons charged. The same morning too he was in court when Taupa and the others were brought before the court but he made no statement or plea of any sort in relation to them although he had previously spoken in court on behalf of indigenous persons.

When the defendants were brought before the court the police prosecutor asked for a remand as I understand in custody and without further ado, except for one matter which I will mention, the resident magistrate granted such remand in custody until 6th September. He could not remember whether the date, the 6th September was fixed for the convenience of the court or at the request of the police prosecutor. He did not advert to the question of bail, but contrary to usual practice he asked Taupa and each of the persons before him whether they had any complaints of their treatment. He was reminded by Mr. Galbally, for Taupa, of the sections of the District Courts Ordinance and of the Criminal Code relative to bail but said in effect that he did not consider bail. The defendants did not ask for it and he observed that the Deputy Public Solicitor was sitting in the court. The Deputy Public Solicitor upon being called testified that he was in court on that morning but purely as a curious layman and that he was not acting for any of the defendants.

The actions of both the police and the resident magistrate were strongly criticized and I think with some justification. However, it must be remembered that Rabaul is a small community, that the dispute about the ownership of the land upon which the confrontation with the District Commissioner took place would be common property and that the murder of the District Commissioner was an event which was unique in Rabaul and indeed in Papua New Guinea and that it had caused both shock and horror in the community. Further, whilst qua penalty the offence of riotous behaviour is technically a minor offence a charge for that offence is commonly initially brought throughout the Territory where large numbers of persons have been involved in mayhem and indeed murder. In more primitive areas than Rabaul where large-scale tribal fighting has occurred and where when a small and on the whole comparatively untrained police force is called upon to preserve law and order, and where in many cases it is well nigh impossible to sheet home a charge of murder, a charge of riotous behaviour and consequent conviction thereon is the only practicable method of temporarily preserving the peace.

The warrant of committal signed by the resident magistrate on 23rd August directed that Taupa should be held by the Corrective Institution at Kerevat, some 40 minutes or more drive from Rabaul. He was not in fact taken there after the court hearing but was returned to the police station where he was placed in one of the larger cells with another person or persons. There he appears to have stayed until he was brought into Sub-Inspector Baker’s office on the following morning at about 8.15 a.m. There after a caution which differed from that usually given he agreed to answer further questions by Baker and a typed record of interview was made in Pidgin English. The questioning lasted until 12.40 p.m. with a break from 10.15 to 10.45 a.m. for a smoke and a use of the toilet and a luncheon break from 12 midday until 12.25. Taupa seems to have had his lunch daily in the police office and his evening meal in the cell. At the conclusion of the interview, which was recorded on the typewriter and which filled five single-spaced foolscap pages, what was typed was read back to him. He made a correction on one page and signed each page at its foot. The Charge Book shows that he was charged with wilful murder at 1.00 p.m. but I am unable to be satisfied as to where the entry in the Charge Book was made, that is whether it was in the general office or in Baker’s office.

From what I have said it is clear that Taupa was in custody from approximately 6.30 a.m. on Friday 20th August until 1.00 p.m. on Tuesday, the 24th. And it was agreed by Mr. Baker that for approximately 8 hours of this time he was being questioned and that at no time during this period was he advised that he could have legal representation nor that he could make an application for bail.

Mr. Galbally has powerfully argued that I should not admit the record of interview taken on the morning of 24th August. Before dealing with the basis of his objections I should state that I have also ruled despite argument to the contrary that I am entitled to look at the record of interview for the purpose not of considering the truth of its contents but of the assistance it may afford me in considering whether or not it was voluntarily made.

Mr. Galbally’s primary argument was based on the general circumstances preceding and surrounding the making of the record and on the conclusions which he urged upon me as inescapable that Taupa had been physically assaulted prior to his appearance in the Court, sunk into despondency by statements or threats as to the fate of his land and his wife, oppressed and overborne by his lengthy period of incarceration or custody, more particularly as the Court had by its attitude left him in a hopeless frame of mind and one in which he himself feared death at the hands of the police, and finally, that he had been threatened with a knife immediately prior to the statement now in question. These circumstances he said could not fail to show, firstly, that Taupa’s statement was made after threats to him and so attracted s. 15 of the Evidence Ordinance and, secondly, that I could not be satisfied that it was made voluntarily in the sense in which the cases at common law showed that term to be understood. I have reread and derived assistance from the cases cited to me and in particular from Cornelius v. The King[clxiv]¹⁸; McDermott v. The King[clxv]¹⁹; R. v. Lee and Ors.[clxvi]²⁰; Jackson v. The Queen[clxvii]²¹; Wendo and Ors. v. The Queen[clxviii]²². As would be expected I have derived particular assistance from the judgment of Dixon J. (as he then was) in McDermott v. The King[clxix]²³ where he says[clxx]²⁴:

“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.”

Before proceeding further with an analysis of the circumstances I think I should at this stage express my view as to the personality of Taupa. I had the advantage of seeing and hearing him for some time in the witness box. He was called on the voire dire and examined and cross-examined at some length. He is on the evidence about 45 or 46 years of age, he lived in Rasimen village until about the age of 21 years after having had some four or five years’ education at a mission school, and has lived at Nonga which is in effect a suburb of Rabaul for 25 years during the latter eight years of which he was an admission clerk at the Nonga Base Hospital, and he had some training the nature of which I do not know at the Nonga Medical School. In my view he is a man of some force of character fully aware of the position in which he now finds himself. He is in my judgment a man who would not be easily browbeaten. I noted particularly when he was being pressed in cross-examination the force with which he gave his answers and his determination not to let the cross-examiner get the better of him. I remark also that, as I understood Mr. Galbally’s case against the admission of any statements of Taupa and in particular of this last one, the statement was made because of the fear induced in Taupa by all the circumstances which I have earlier set out. This however was not Taupa’s story when he came to give it. He really said nothing about his state of mind before the Sunday evening and I can nowhere see any evidence to show that fear dictated his statement on the Friday afternoon. His story as it eventually emerged was that he had in fact freely related his version of the land dispute to Sub-Inspector Baker, that it was about the time that he had finished speaking of the land dispute that Sub-Inspector Bryant threatened him with a bayonet or knife and thereafter that he was in such fear that he said nothing. His suggestion then was that the latter and inculpatory part of the statement had been manufactured by the police officers.

For my part I reject entirely his evidence concerning the use of the knife. I reject it because of his inconsistencies in the witness box. His evidence carried no conviction to me and I prefer on this point that of Sub-Inspectors Bryant and Baker and also that of Constable Compoun. Other inconsistencies in his evidence generally were pointed out to me by Mr. Brennan which I will not take time to discuss in detail but which in my view have considerable force. I do not accept his evidence that he was slapped in the face by Baker and Bryant in the way he describes and this despite the reconciliation which I believe is possible between what he said before me and what he said to the magistrate, viz. that he was slapped twice by a European. I have no confidence that anybody assaulted him prior to the court hearing on the 23rd nor that the verbal taunts as he described them were in fact uttered. However, on this latter score I do not altogether reject his evidence as in what I can well conceive to be the atmosphere existing in Rabaul at that time it is possible that some member of the police force did utter what he described as the taunts set out in the magistrate’s notes.

I was concerned about the questioning after the period spent in custody but I think that Taupa’s reason for talking as freely as he did was that his grievances once again had to find expression. He was of course aware and made aware of some of the results of the inquiries which were being conducted and could not but have realized that the police were gradually piecing together the events of 19th August and his part in them. I have obtained great assistance from my perusal of the record of interview itself. In the first place I am confident that neither Sub-Inspector Baker nor Sub-Inspector Bryant could have been aware of the detail of the land dispute going back to 1961 which is dealt with at length for practically the first three pages of the record. This part of the statement reads as that of a man who is both willing and anxious to give vent to what he considers to be and what in fact may be legitimate grievances. Nowhere here can I see any sign of a man oppressed and overborne. In the second place the portion of the record after the mid-morning break does not bear any evidence of oppressive questioning, and in the third place there is no allegation of any sort by Taupa that he was badgered or hectored nor that he was pressed to agree with a police view of events. In the result, I am satisfied that the confession was voluntary in the extended meaning which that term has come to have at common law and that it was not made as the result of any threat or promise so that it would contravene the provisions of s. 15 of the Evidence Ordinance.

I am still left with the difficult question as to whether I should exclude this confessional statement in the exercise of the discretion which the cases show that I have. Here the onus lies on the defence to convince me that I should. A number of what are said to be improprieties have been eloquently and colourfully attacked and that attack has in my view in part hit home. In order to see whether there has been such impropriety as should vitiate the document tendered I set out seriatim the individual matters of which complaint is made. It was made clear to me that strong reliance is placed on these matters singly and also on the totality of the situation created as a result of their existence. They are:

N2>1.       Taupa was kept in custody from approximately 6.30 a.m. on Friday, 20th August, until 1.00 p.m. on Tuesday, 24th August.

N2>2.       He was questioned for approximately eight hours over that period.

N2>3.       He was so detained and questioned for the purpose of extracting a confession from him.

N2>4.       All the police officers concerned were determined that Taupa was not to be granted bail notwithstanding the fact that he was arrested, charged and placed in custody on a minor charge.

N2>5.       He was assaulted twice by a European on Sunday, 22nd August, and taunted or, looked at in another guise, threatened by an unidentified indigenous policeman on the same day or evening whilst he was locked in his cell.

N2>6.       On his appearance in the District Court on 23rd August no question was asked of him as to his consent to the adjournment applied for by the police prosecutor.

N2>7.       No advice was given to him either before or on his appearance at the District Court that he could seek bail.

N2>8.       No advice was given to him by the magistrate or by anybody else at any other time that he could seek or obtain legal aid.

N2>9.       No steps were taken by the magistrate to inquire into his complaint of the violence or taunts suffered by him on the previous day.

N2>10.     The flagrant disobedience of the warrant of committal of the magistrate committing him to the Kerevat Corrective Institution.

One, 2 and 3 above I think can be conveniently dealt with together. There is no doubt that Taupa was in custody for the period stated and it is true enough that he was questioned for approximately eight hours during this period. But it is to be observed that the first detailed or the first real questioning on the Friday afternoon occupied 2 - hours of that total and the final questioning on 24th August just on another 4 ½ hours, so that something over 7 hours was occupied on these two occasions leaving a quite short time divided between the remaining conversations or interviews with him. With regard to the extracting of a confession the word “extracting” and the argument supporting it were necessarily emotionally based. Whilst I have no doubt that the police officers concerned were themselves subject to the emotion of anxiety that a confession should be obtained from Taupa, that they were convinced that he was deeply involved in the events of 19th August and that they were determined that he should not be released from custody until they had a full opportunity of questioning him, I cannot see as I have I hope made clear earlier, that he was in fact overborne or that they in fact “extracted” a confession from him.

With regard to 4, I am satisfied that the police officers concerned were determined that Taupa should not be allowed to be released on bail. I make the comment that the instruction noted in the Charge Book “not to be released on bail under any circumstances” was both inapt and apparently in breach of the spirit of the station memorandum and instruction to which I have referred earlier. I can understand the police opposition to bail in this case but it is an opposition for which opportunity should have been provided, if required, for its public expression and justification. I am not to be taken as saying that the opposition was not justified, but that was a matter to be decided publicly. In my view both the station memorandum and station instruction indicate a proper appreciation on the part of the senior officers of the police force of the necessity to safeguard the rights of the citizen but I do not wish to be thought to be attempting to lay down any “Judges’ Rule” in this regard. Papua and New Guinea are both so diverse in character and in their degree of development that every case must be looked at in the light of its own circumstances. The criticisms made in this case serve to show the basic considerations which have to be kept in mind, but I only need to say that such criticisms would be laughable in the case of a man in a remote highland area who has attacked his wife’s father and has travelled for two days to the nearest “kiap” both to confess what he has done and to seek incarceration and protection against avenging relatives, to illustrate this point.

I can only think that the police conduct was brought about by their determination to leave no stone unturned to bring any persons whom they thought to be a malefactor to justice. Their determination and their zeal blinded them to the necessity of remembering at all times the rights of the citizen.

With regard to 5, that is the assault on the accused, I have already dealt in my findings of fact with this matter.

With regard to 6 and 7, and they relate to the questions of adjournment and bail, despite Mr. Galbally’s innuendo—and I do not say he was not entitled to utter such—there is no evidence and I would not for one moment draw any inference from the evidence before me that the magistrate was acting in any way in co-operation with the police. However, he has been criticized, and I cannot say improperly, for failing to seek Taupa’s view as to and consent to an adjournment of the charge preferred against him. It is now clear that a number of people were before him charged with riotous behaviour, a charge which as is well known may always be a prelude to one more serious. He erred I think in not requesting consent. The magistrate should also in my view have asked Taupa (and this of course applies to the other persons charged before him on that morning) whether he was making any application for bail. The appreciation in the mind of an indigenous prisoner as to what bail means I know is generally a matter of some doubt and the decision whether or not to grant bail can well pose difficult questions. A basal consideration can be whether an indigenous person charged has any conception of the processes of the law. This highlights the educative function of all judicial tribunals and lawyers in Papua New Guinea. In this particular instance I have no doubt that a case could and in all probability would have been made out for refusal, but at the same time I think it important that in the operation of the legal process citizens should be made aware of their rights and of the proper processes of the law. Again in this particular case it may well be that the magistrate was imbued with the general sense of shock and horror of which I have spoken and it is all too easy to criticize after the event and in a different, less hurried atmosphere.

The question of advice as to legal aid raises other difficult considerations. Perhaps the more so if there are people in Rabaul of the same mind as Mr. Kaputin. I am fully aware of the extent to which the resources of the Public Solicitor are stretched and of the way Papua New Guinea generally has in the past lagged behind in the training of lawyers. This is a malady which has no easy solution. The most I think that the magistrate might have done would have been to have reminded the defendants before him of the existence of the Public Solicitor but I am not prepared to criticize him for not so doing. After all the institution of the Public Solicitor is very well known in Rabaul.

The criticism that no steps were taken by the magistrate with regard to the allegations of violence has caused me some concern. I think it is a fair comment that he should have called for some answer on the part of the police prosecutor in order to enable him to properly consider both the question of adjournment and bail, but it is conceivable that in asking the question that he did the magistrate realizing the magnitude of the matter before him may have had it in mind to put the police force on warning that it should take care to guard against any impropriety.

Whatever may have been the defects in the District Court—and the Crown did not seek to minimize or excuse them—these have not been shown to me to have arisen out of any co-operation with the police and I am not prepared to think that they had.

With regard to 10, that is the disobedience of the committal warrant, I can see no reason for this disobedience other than a desire on the part of the investigating officers to have Taupa readily at hand when he was required and to save them the trouble of seeking permission of his legal custodian to interview him. This is but part of the general view which I have formed that the members of the police force had decided to take Taupa under their close supervision until he had given them all the assistance they required in their inquiries.

It will be evident from what I have said that there were improprieties in the course of the investigation into the murder of Mr. Emanuel, and I am fully conscious of the words of Mr. Justice Dixon (as he then was) in McDermott v. The King[clxxi]²⁵ so many times quoted to me—”The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence.” But I do not regard those words as laying down a proposition of law that were I to come to the conclusion that in this case there had been such an abuse of the power of arrest, that impropriety must result in the exclusion of the evidence. As I have already said I am satisfied that Taupa’s statement was a voluntary one. The ultimate question really is whether the improprieties which did occur are such that the voluntary statement made by Taupa ought to be rejected because the admission of that statement is unfair to him. But at the same time I must ask myself whether the court’s disapproval of conduct and consequent rejection of evidence should outweigh the public interest in seeing that all relevant evidence is before the court when guilt or innocence of a serious crime is being considered. After serious and anxious consideration I do not think either that the conduct was so unfair or the balance of public interest such that I should reject the confessional statement. I am fully aware that justice must be seen to be done and that in some aspects in this case some veils have been sought to be cast over that view. But after the benefit which I have had of a thorough investigation and most helpful argument I have come to the conclusion that I should not exercise my discretion in favour of Taupa and that I should admit his statement of 24th August, and I rule accordingly.

RULING ON APPLICATION FOR DISCHARGE OF TRIAL JUDGE

With regard to the latter submission made this morning with reference to my choice of language and the consequent state of mind which the choice of language is said to show, all I can say is that at all stages I had in mind the authorities which were cited to me and the law clearly laid out therein. For what I had in mind persuasion might have been a better term. The defence urged that I should reject this statement because of the improprieties that had been shown. That because of those improprieties, amongst other things, it would have been unfair to the accused. But let it be said now that the defence have not persuaded me that that degree of impropriety has been shown or, more accurately, that in all the circumstances which have emerged I should in the exercise of my discretion reject the statement. I come back now to the initial submission made on Friday. Mr. Lusher, on behalf of William Taupa ToVarula one of the persons before me on the present indictment, has submitted that because of certain remarks of mine uttered in the course of delivering a ruling, I should discharge myself from taking any further part in this trial. In that submission he was joined by counsel for nine other of the accused. Counsel for the Crown has submitted that I should continue with the trial and counsel for three of the accused have stated that they do not join in Mr. Lusher’s submission and have urged me to continue.

The ruling in question was made not in the trial itself but consequent upon a voire dire lasting several days and which was collateral to the trial or subsidiary to it in the sense that portion of the conduct of the trial depended upon my ruling.

To the lawyer it needs no saying but to the non-lawyer it should be made crystal clear that the manner in which Mr. Emanuel met his death and the guilt or innocence of any of the accused neither was nor is in any way material to the issue on which I had to rule —that is, whether the statement by the accused man, William Taupa ToVarula, sought to be tendered in evidence was or was not a voluntary statement and whether in the exercise of my discretion I should reject it. Indeed I had thought that I had made it quite clear at the outset when the admission of the statement was challenged that if Taupa decided to give evidence on this issue I would not allow any questions to be directed to him which concerned the truth of any confessional statement which he may be said to have made.

At this stage I have scarcely entered upon the trial proper. I have already categorically stated that I have a completely open mind on any issue relevant to the trial.

I have carefully considered what has taken place and has been said so far in the proceedings. That any persons could conclude, either from what I said in the course of my ruling or from what I then said associated with any conduct of mine or statement made by me at any other time, that I have already decided that the 13 men accused before me of the murder of Mr. Emanuel are guilty seems to me a proposition beyond the bounds of reason and commonsense.

I reiterate I have come to no conclusion however tentative relative to the circumstances of Mr. Emanuel’s death nor to any connection which may or may not be had with that death by any of the accused. I have given full, worried and repeated consideration to the submissions made to me and in the result have come to the view that I should continue with this trial—and by that I mean of all the persons who are presently arraigned before me.

RULING ON DISCLOSING NAMES OF INFORMANTS

In the course of the cross-examination of the witness at present in the witness box, Inspector Bell, Mr. Lusher for the accused man ToWaliria sought to elicit from him the names of two informants from whom he stated he had obtained information leading to a decision to apprehend ToWaliria.

Mr. Brennan for the Crown properly pointed out that it has long been declared to be a matter of public policy that in criminal proceedings, indeed in any proceedings, the names of informants where criminal prosecutions were involved should not be divulged and of course there is a very good reason for that public policy.

The present matter arises in this way. Mr. Lusher is in the course of seeking to show that a statement or statements made as the result of questions put in an interview at the Livuan police station on 22nd August should not be admitted in the Crown case. As I understand it—there has been no real argument on this subject as yet—but as I understand what he is doing, it is this: he is seeking to show both that the statements made by ToWaliria are not voluntary and also that even be they voluntary the circumstances in which the statements were taken and recorded were of such unfairness in the exercise of my discretion I should reject them.

In regard to the first matter, that is the voluntariness of the statement, at the moment I cannot see that the names of Mr. Bell’s informants could be relevant on that matter. With regard to the second line of attack I think the position is somewhat different. I should preface my further remarks by saying that the admission of information taken in these statements seems to me to be crucial both to the Crown case and to the accused’s defence. Mr. Lusher, as I understand his line of approach, is seeking to show amongst other things that the apprehension or arrest of ToWaliria fairly early in the morning of 22nd August was completely unwarranted and that the Inspector had no reasonable grounds existing at that time upon which to make such an arrest and in the course of so doing, he is currently setting about attacking the validity of the grounds upon which the arrest was made. To do that, of course, it is necessary firstly to ascertain what those grounds are said to be and once those be established, and I note that so far of course they have not been established, Mr. Lusher says it will be necessary in testing the belief on those grounds to ascertain from where the information was obtained. This may or may not be so in fact, but at this stage I cannot say that that will not necessarily be so.

Although the cases which have been cited to me—and the case law on this subject appears to be minimal—although these cases appear to show that the public policy against disclosing the name of informants is one which is very strongly upheld by the courts, yet in the case of Marks v. Beyfus[clxxii]²⁶ the remarks by Lord Esher seem to show that there is a distinction in the case where the question of the prisoner’s guilt or innocence may be involved. I note from an article which was referred to this morning in 1959 Criminal Law Review that a case is cited of The Queen v. Richardson[clxxiii]²⁷, a case apparently decided by Chief Justice Cockburn in 1863, in which the name of the informant was ordered to be given. I am inclined to think that I have a discretion in a case of this sort, a discretion not lightly to be exercised but one which none the less exists and in view of the importance of the admissibility or otherwise of this statement and of the circumstances in which it was taken, I think that I should exercise my discretion in favour of the person accused. I have had anxious thought about this because as I have remarked in the course of argument, in a country such as Papua New Guinea I think it is of great importance that names of informants should, where possible and except where there are overriding considerations, be withheld for reasons which I think it is hardly necessary to elaborate upon. But for the reason which I have given, I propose to allow this line of cross-examination.

RULING ON CALLING EVIDENCE OF MAGISTRATE

With regard to the question of the Crown’s power to call the evidence of Mr. Mitchell, I have reread the arguments adduced before me on 24th February last and whilst at the time I thought it desirable to defer a ruling, in the light of what has happened this morning it seems to me that now I should give a ruling on this matter.

I intimated on that day, 24th February that I was inclined to agree with the arguments by Mr. Brennan for the Crown and having reread the arguments I see nothing in them to cause me to change my mind. I will accordingly rule that there is power in the Crown to call the evidence if it so desires.

Unfortunately, here we have not at this moment a library adequate for the purpose of considering a matter such as this in great detail but I refer to the 10th ed. of Phipson on Evidence, par. 569 at p. 245. That paragraph reads:

“Judges of the superior courts cannot be compelled to testify to matters which have arisen before them in other trials; though this does not extend to collateral incidents occurring during such trials—e.g., the attempted rescue of a prisoner in court. But there is no objection to the judge of an inferior court being called in some circumstances, although it would seem highly undesirable to call such a witness unless there was absolutely no other means of proving some piece of evidence vital to proceedings.”

It seems to me from other references in Phipson that a judicial officer is both competent and in circumstances such as this, as I see it, compellable to give evidence should he be called.

I hold that the Crown has power to call if it so desires.

RULING ON ADMISSIBILITY OF EACH STATEMENT BEING DEALT WITH ON TENDERING

For some days I have been hearing evidence on the voire dire directed to the admissibility or rejection of a record of interview said to have been conducted by Sub-Inspector Baker with the accused man Anton ToWaliria. The admissibility having been challenged on the ground that any admissions or statements made by ToWaliria during the course of that interview are not voluntary it is for the Crown to satisfy me on this issue. The principal witnesses called have been Sub-Inspector Baker and his superior, Inspector Bell, who had the general charge of and was responsible for the conduct of the investigation into the death of Mr. Emanuel. Portion of their evidence was to the general effect that ToWaliria voluntarily answered questions asked of him and that there were no force, threats, intimidation or oppression of any kind used or offered to him. Their evidence has been strongly challenged and at this stage it is not for me to nor do I make any comment whatever on their credibility nor on their conduct of the investigation which has emerged from their examination-in-chief, their cross-examination and their re-examination.

Before lunch yesterday Mr. Lusher called Mr. Keenan as a witness and tendered some other documentary evidence. I was of the impression that he then announced that that was their evidence called on the voire dire and so noted that fact. However, the transcript makes no reference to this announcement and as I have no precise recollection of the words used by him I am not prepared to say that he in fact closed his case on the voire dire.

Prior to lunch Mr. Lusher outlined some general submissions on behalf of his client and on resuming after the luncheon adjournment he continued with those submissions. He outlined the difficulties under which he felt himself to be labouring and initially asked me to postpone addresses on the voire dire until all evidence had been heard, but his ultimate submission was that I should allow him not to close his case nor address until they had been completed. Fairness demanded this course because there might be matters elicited in subsequent voire dires of which he could avail himself in attacking the credit of Baker and Bell—and their credit and perhaps most importantly lack of credibility was vital to the success of his general submission.

All the other defence counsel except Mr. Carruthers and Mr. E. Pratt dissociated themselves from Mr. Lusher’s submission but it does not necessarily follow that their attitudes would remain unchanged when the admissibility of the confessional statements tendered against their respective clients comes to be considered.

The possibility in this is that there are 11 more statements to be challenged. Were I to accede to Mr. Lusher then as Bell’s conduct may come into question in respect of all these 11 statements he may seek to use material elicited on each voire dire which he thought to be favourable. This could involve further cross-examination of Bell in his case. I can only deal with the admissibility of each statement on the evidence called in relation to that statement. Each succeeding counsel could in respect of the diminishing number of voire dires ahead of him take the same course. To a lesser extent such a course could be sought in respect of the other police witnesses called. I have been told from the bar table there are some statements the admissibility of which will not be challenged but I will not know how many of these there are or indeed whether any until the occasion arises to tender them. In the present voire dire no question arises at this stage as to the credibility of ToWaliria. I have not heard him and have no material from which I should even attempt to assess him. If I allow Mr. Lusher to keep his voire dire open, might it not be possible that having heard all the remaining evidence to be called he would seek then to call ToWaliria—and so with other counsel. With these considerations in mind it seems to me that it would be extraordinarily difficult to appear to be doing justice in the confusion which could eventuate. As Mr. Brennan has pointed out any conclusion I come to on admissibility in circumstances such as exist in this case is open to change.

I appreciate Mr. Lusher’s concern that his client should be fairly treated and that he should appear to be fairly treated. That is also my concern. Giving the matter the best consideration I can I am of opinion that the admissibility of each statement or record of interview should be dealt with as it is tendered. If later evidence gives grounds for a submission that my ruling on it should be reversed then that submission can in due course be debated and ruled upon. I should add that in so far as any ruling depends on the credit of witnesses that credit I determine as I see it at the moment in relation to the question before me and in the light of the requisite standard of proof.

I rule accordingly.

RULING ON ADMISSION OF TOWALIRIA’S RECORD OF INTERVIEW

On 21st August, 1971, Sub-Inspector Baker conducted an interview with the accused man ToWaliria at the Livuan police station. Questions were asked by him in Pidgin and recorded and the answers said to be given by ToWaliria in Pidgin were similarly recorded. The resulting document, which has throughout been referred to as the record of interview, has been tendered by the Crown but its admissibility has been vigorously attacked by Mr. Lusher for the accused man. Evidence on the voire dire began on 21st February and the arguments concluded on 2nd March. I regret the delay which has been brought about principally by the necessity of my attending to some urgent matters in Port Moresby and also by what I deemed to be the necessity of carefully rereading the evidence given and the authorities cited to me. As far as the evidence goes I find the following to be the sequence of events.

At some time shortly after 11 o’clock on the morning of 19th August, 1971, Sub-Inspector Baker was taken by Superintendent Feeney in company with Sub-Inspector Kneebone and Sub-Inspector Bryant to a small road bordering Kabaira Plantation. This road also bordered a reserve within which is Rasimen village. On this road and somewhere about 90 feet from its junction with a track leading down to Rasimen village, he saw the body of the District Commissioner, Mr. Errol John Emanuel. There was a series of blood stains from the vicinity of the road and track junction to where the body was lying. There was a lot of blood on the deceased’s clothing. A subsequent post-mortem showed a laceration 2 to 3 centimetres long in the seventh inter-costal space and what appeared to be two internal wounds, one passing through the right lung and eventually penetrating the left, the other one apparently branching off the first some 5 to 6 centimetres inside the body and turning downwards for 5 to 6 centimetres into the lower lobe of the right lung. Death was due to a massive bilateral pneumothorax and massive haemorrhage. After the body had been removed Baker, along with Superintendent Feeney and the mobile police, made a sweep through the bush to Rasimen village. There he observed a large number of native males running away in the bush. There was one man, ToGigie, who remained in the village and Baker had a conversation with him.

On 21st August Inspector Bell, who by then had arrived from Port Moresby and had taken charge of the investigation into the death of Mr. Emanuel, had a conversation with Sub-Inspector Kneebone in which Kneebone reported the following to Bell: “I told Taupa (one of the present accused) that ToBoro had told me ToWaliria killed Emanuel. I asked him if this was true and Taupa said ‘Yes’ and named some of the men.” Bell also had a report from Sub-Inspector Bryant that during an interview with ToBoro the latter had said to Bryant, “ToWaliria killed the District Commissioner”.

Early on the morning of the 21st a party of police, which included Inspector Bell, Sub-Inspector Kneebone and Constable ToButinga, conducted a search in the vicinity of caves behind Rasimen village and, when making their way back towards the North Coast Road, Inspector Bell at about 8.00 a.m. saw ToWaliria clad in shorts and with a bush knife in his hand about to cross from left to right the path upon which the police officers were walking and about 12 feet ahead of them. ToButinga was in the lead and Inspector Bell saw him grasp ToWaliria by the right arm and heard him say, “What is your name?” to which the reply was “ToWaliria”. ToButinga walked with ToWaliria about 300 yards to the main road and to a Datsun car parked by the roadside. About 30 minutes later Bell saw ToWaliria at the Livuan police station which is about 15 minutes’ drive from Rasimen on the way to Rabaul. He was then standing in front of the station together with nine other Tolai men. A short time later he saw ToWaliria in a line of men and later again saw him in the office at the police station. The police station consists of three rooms, these from right to left as one looks at the station from the main road being the duty office, a single men’s dormitory and a kitchen cum mess-room. Bell left the station and returned about two hours later and then observed ToWaliria sitting in a chair in the office. The latter then left the office in the direction of the kitchen at the other end of the building. About 10 or 15 minutes later he returned to the office, walked to a desk and sat down on a chair in front of the desk. At this time Sub-Inspector Baker, Sub-Inspector Bryant and Constable Wagi were also in the office. At this time, which I find to be 12.05, Baker began to type out the document which is the subject of this voire dire and has throughout been referred to as a record of interview. The desk at which the interview was conducted was placed a short distance away from and parallel to the righthand end wall of the police station and almost adjacent to the counter which ran from right to left the length of the office as one entered it. Bell seated himself at a table in the lefthand far corner of this office and remained for about 1 1/2 hours whilst the interview was being recorded, compiling a list of persons whom he wished to interview. After about 1 ½ hours he walked into the next room where he remained until the conclusion of the taking of the interview. The interview concluded at 2.25 p.m. Baker was present for the whole of the interview as were Sub-Inspector Bryant and I think Constable Wagi and there was a short break for a meal from 1.30 to 1.40 p.m.

I am satisfied that at no time whilst ToWaliria was under the observation of Baker and Bell was there any violence of any sort proffered to ToWaliria. I am satisfied too that there was no sign visible of any injury to ToWaliria’s right ear. On Bell’s return to the office where the interview took place and immediately after the interview he asked ToWaliria whether the police officer hit him or said that he would later hit him if he did not speak, or tried to bribe him or said to him he would not later go to court or prison if he spoke. ToWaliria answered in the negative. Bell also asked him whether any other police officer or policeman had acted similarly towards him, to which he also replied in the negative and similarly replied to a question whether when the police first arrested him and prior to them asking him questions had any policeman hit him.

During the morning there were a number of Criminal Investigation Branch members in and around the station at Livuan and in the vicinity there were at least three members of the mobile or riot squad armed with shields, batons and at least in one case with a rifle. Two of the five police officers were armed with a pistol although there was no pistol on the table at which the interview was being conducted and I do not think there was one in the room. After the interview was completed and the questions and answers typed in Pidgin by Sub-Inspector Baker, Constable Wagi read the contents of the document over to ToWaliria. At some time after this ToWaliria was taken back to the vicinity of the finding of Mr. Emanuel’s body and later to the Rabaul police station where he was charged with wilful murder and locked up. He was kept in a separate cell, measuring 6'6” by 12' by 8' high, and was so directed to be kept. A reason for this direction was given but I do not think it important in the present context. He was later brought to court before the resident magistrate, Mr. Mitchell, on the morning of Monday, 23rd August. There he was asked, in the course of proceedings but at a time which I am unable to determine in relation to the other accused who were also before the court that morning, a question the result of which was recorded in English on the court record by the magistrate as being that he had no complaints of his treatment. However the magistrate did not record in Pidgin the question asked nor the answer given. According to the best of his recollection he asked the question of which he stated the English translation to be, “Do you want to tell the court about anything that happened to you when you were arrested and when you were waiting to come before the court?” I am not able to determine whether ToWaliria understood that he was being asked as to whether he had any complaint of police treatment and I do not derive any assistance on the question of violence from what took place in the court on this day.

On 20th October ToWaliria was seen by Dr. Beatty at the Nonga Base Hospital and was observed to have a hole in his eardrum which was discharging pus. He was brought back to hospital, in all five times but at not very regular intervals. The treatment was completed but the doctor thought it would not be as effective as if he had been brought back regularly. The damage observed by the doctor was not of itself consistent with a blow on the ear but it may have arisen from such a blow. In the doctor’s opinion a blow on the ear was more likely to damage ToWaliria’s eardrum because of previous ear trouble. The history which ToWaliria gave to the doctor enabled the latter to say that the damage that he saw could have been caused by a blow to the ear and he would expect some bleeding from a severe blow if it had damaged the eardrum. The doctor recollected that ToWaliria when giving his history said that he had received a blow on either the evening of the day of his arrest or of the day after. He was sure that ToWaliria said it was in the evening.

On 20th August there were both a charge book and an occurrence book at the Livuan police station although Bell was not aware of their existence and he in fact regarded Livuan merely as a convenient base to be used in the course of the investigation. To him Rabaul was the centre of the investigation.

Mr. Lusher contested the admissibility of the record of interview with ToWaliria on three main bases. The first was that the Crown had not succeeded in proving that any statement made by ToWaliria during the course of this interview was voluntarily made, the second that even were I to hold that they were voluntary I should exercise my discretion in ToWaliria’s favour and the third related to the document itself and to its contents.

The submission that the statement was not voluntary was supported in two ways. Firstly, it was said that the evidence showed that ToWaliria had been assaulted before the record of interview began and, secondly, it was urged upon me that the circumstances showed what amounted to an inducement to him to speak. I can see nothing in the evidence to enable me to come to a conclusion that there was an assault. I appreciate Mr. Lusher’s difficulties with regard to calling his client but the fact remains that I have no evidence whatever from him to support this assertion. No suggestion was put forward as to the circumstances in which or the assailant at whose hands ToWaliria might have received a blow on the ear. The most that can be said is that when examined by Dr. Beatty on 20th October he alleged that on an evening after his arrest he was assaulted by a native policeman, but this could have no relation to his answering questions in the middle of the day and in any event such a piece of hearsay cannot be admitted as evidence of the fact in issue. Whatever else may be said about Messrs. Bell and Baker I see no reason to doubt their assertion that no violence was exercised by them or in their presence and I accept Bell’s evidence as to his questioning ToWaliria on this subject at the conclusion of the interview. In coming to the conclusion that there has been no violence I have not relied upon anything that was said by ToWaliria in court on Monday 23rd August because I am not satisfied that the language which the magistrate recollected he used was necessarily understood as inviting complaint of the sort of treatment alleged.

The submission with regard to inducement amounts in essence to an allegation of a deliberate lulling of ToWaliria into a false position. The circumstances of his apprehension, as it is argued, misrepresented the reality of his position and so amounted to an inducement. I do not think this is so. I think it reasonable to assume that at least ToWaliria must have been aware of the death of the District Commissioner, that that death had occurred in close proximity to his own village, that it was the subject of police investigation and that when he was taken in custody along with a number of other villagers and was for some time, however short, in their company at Livuan police station on the 21st, he would expect to be questioned as to what he could say about that death and as to his knowledge of the circumstances in which it took place. I appreciate that there is no evidence to show that he was made aware that he was a suspect or prime suspect but there was nothing in the nature of the questioning to trap or compel him into an admission. My main concern has been whether the form of caution given to him was sufficient to advise him of his right to remain silent. I have not heard from him of course that it was not, but in this case the onus does not lie on him to satisfy me. I have read and compared the evidence of Mr. Parker and Mr. Keenan. In the course of the debate I have expressed the view that I prefer the form of caution composed by the latter although I have had second thoughts about some aspects of it. However, my preference remains for a rather more elaborate form for general use and on this matter I hope in due course to consult with my brother Judges. But the question remains whether with this man and in his environment was the caution administered sufficient to make him understand that he had a right to remain silent if he so desired. I observe that even in the Police Manual there is nothing said about verbal expression of a duty to warn. See the form of caution set out under Rule II and Rule V. I have not the benefit of being able to assess his level of intelligence or comprehension. I can only go on Mr. Parker’s view, and he has had a good experience of the Tolai people, that the form of words used would convey the meaning of freedom not to speak. So far as I can see ToWaliria has been taking a consistent and intelligent interest in the proceedings. Having in view the importance of this matter I think that, on the balance of probabilities, the caution would be sufficient in his case and that so far as concerns the beginning of the interview he exercised a right of voluntary choice. However, when one comes to question 57 as it is numbered in the English translation the position is somewhat different. The question is virtually in imperative form and although there are some cautionary words at the end I have some doubt as to whether ToWaliria would fully appreciate that he continued to have a free choice. I think it possible that he would have freely continued to answer questions as the record shows his having done up to that point but I have not that degree of satisfaction that I should have that this was so. Accordingly I hold that the questions up to and inclusive of question 56 were answered voluntarily but that I am not satisfied that they were so answered thereafter, and I would reject that part of the record after question 56.

This brings me to the submission that I should reject the whole of the record of interview on the basis that it was unfairly obtained. Here it is for the accused to satisfy me, an onus which in my opinion is quite clearly established by the authorities.

In the first place Mr. Lusher made a general and sustained attack on the police approach to this investigation and on the conduct of the investigation itself. He invited me to condemn and rebuke the police officers concerned in the strongest terms and by way of ultimate sanction to reject the record of interview now tendered. He referred me in detail to the relevant portions of the station memorandum issued under the hand of Superintendent Parry at Rabaul in October 1967 and to the volume entitled “Police Procedure” issued under the hand of the Commissioner of Police in September 1970. This has been referred to constantly as the “Police Manual” which I think a convenient term. The manual he said in effect left no room for the use of the record of interview technique. It was and is incumbent on the members of the police force to ensure that the suspect interrogated should give his story in his own words and in such context as he selected without questioning or examination of any sort except such as was necessary to clear up ambiguities. Mr. Brennan on the other hand strongly urged upon me that there is no directive which forbids the use of the record of interview procedure and that rule 7 of the Judges’ Rules, which also happens to be rule 7 of the relevant instruction in the manual, has no application where such a procedure is adopted. He readily conceded that the spirit of the Judges’ Rules is to be observed and that in the application of this procedure care must be taken that there is no breach of statutory or common law rules and also that fairness towards the person being interrogated must be observed. In support of his argument he reminded me of the obiter dicta of the court in R. v. Lee[clxxiv]²⁸—”The expression ‘voluntary statement’ in rule 7 probably has reference to a volunteered statement”.

Whilst I am inclined to doubt whether the procedure directed to a record of interview could stand with the imperative way in which the Judges’ Rules as expressed in the Police Manual have been promulgated, the reference to R. v. Deverell[clxxv]²⁹ cited in the explanatory matter to rule 2 has caused me some confusion and would, I think, be apt to confuse any police officer seeking guidance from the manual.

N1>However, I have no confidence that either Bell or Baker is as familiar with this section of the manual as he should be and I do not think that any thought was given to the contents in this case. Before passing from Mr. Lusher’s argument on this aspect I should say that I do not attach the same importance to the October memorandum as he does. I think the later September document is the one to which an officer or member of the police force should be expected to look for direction and guidance. But whatever be the situation in relation to internal police management the rules are not to be considered as the law of this country. This itself is recognized by par. 2 of the relevant section in the manual. They are at most guides to proper conduct and guides which in appropriate cases may well be of the utmost importance in judicial consideration of matters in issue. For myself I think there is a lot to be said for the views expressed by McClemens, J. in R. v. Ragen[clxxvi]³⁰ at p. 574 where he says:

“Speaking for myself, I think the system of recording interviews has a great amount to commend it. This is of particular importance in this case; the events took place on the morning of 15th December, 1962, and the trial is now proceeding, on 23rd June, 1964, and it prevents either the reality, or the suggestion, of defective memory; it prevents the suggestion or the reality of what is not uncommonly claimed and alleged in these courts, namely the fabrication of verbal admissions. If a person who has been charged is served with a copy of his statement immediately one cannot imagine any greater protection that any accused could have against subsequent fabrication, addition, alteration or other change in the evidence. Unfortunately, one sees in this court, criticisms of the police, either on the basis of invention or of slippery memory. Hence it is much more satisfactory to have put before the jury a contemporary document which is recorded, which cannot be changed, because it is there as a permanent record, rather than to have a witness going into the box and giving evidence perhaps quite honestly but in respect of a matter which, in the ordinary way of human nature, he has forgotten and which he has set about, probably the day before, to learn off by heart. As I say, it is much more satisfactory to have a document that comes into existence at the time and of course, unfortunately one does frequently hear suggestions in this court of fabricated admissions. In that instance also the contemporary document does mean that as from the time it is brought into existence and served on the prisoner any addition to or alteration by way of confessional evidence must be looked at with suspicion. It is a protection to the police concerned, to the prisoner, and what is more important, to the public.”

Whilst I have not had the advantage of reading other than the digested headnote in R. v.Deverell[clxxvii]³¹ I am inclined to agree with what is set out in (2), (3) and (4) therein.

N1>I know something of the difficulties of police administration in this country—not the least of which is the necessity to appoint relatively untrained officers to senior positions. This, of course, makes it all the more important for the courts to carefully scrutinize the conduct of police investigations and interrogations and to rigorously uphold proper standards of propriety and fairness. In my respectful opinion the passage from the judgment of Street J. (as he then was) in R. v. Jeffries [clxxviii]³², approved in R. v. Lee[clxxix]³³ has equal applicability in this country and correctly states the law here. That passage reads:

“The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence.”

With these considerations in mind I turn now to look at what happened with regard to the interrogation of ToWaliria. Although the evidence is sketchy I would not be prepared to say that Bell did not have reasonable grounds for suspicion that ToWaliria had killed Mr. Emanuel. On the other hand having taken him into custody at 8 o’clock in the morning I can find no justification in law for holding him at the Livuan police station until he could be interrogated. On the evidence before me there seems to have been a breach of s. 522 of the Criminal Code. As far as I can judge, again on the evidence so far before me in this voire dire, the police officers concerned had it primarily, if not solely, in mind that ToWaliria should be detained for investigation. He was not told, as he should have been, what was the reason for his detention nor that any charge was to be preferred against him. Such conduct is to be strongly deprecated. I realize that both Bell and Baker were concerned in investigating the general circumstances of Mr. Emanuel’s death and that the officers available for this investigation may have been insufficient in number but that does not excuse the failure to carry out what I consider to be the clear requirements of the law.

There were a number of other matters adversely commented upon by Mr. Lusher, e.g. the failure of Bell to acquaint himself with the police records available at Livuan police station and the consequent failure to enter the charge in the Charge Book and other matters concerning the investigation in the occurrence book. The general unreliability of the entries in the Charge Book at Rabaul and perhaps in particular the police attitude to bail, which I have already commented upon in the case of Taupa, are matters which I would hope would be taken up administratively. All these matters I would also hope would be realized by the general public, by the executive and the legislature as requiring training and adequate supervision and consequently time and money for their proper observance. When I am told that there were something like 25 records of interview conducted and 120 potential witnesses to be sorted out and, if possible, interviewed, I can well understand the problem facing the police in this case. This, of course, is not confined to Rabaul. Time and time again I see the results of investigations inadequately carried out because of both the lack of personnel and because of the lack of the necessary training. But all this being said the simple question with which I am concerned is whether the improprieties I have referred to and the apparent determination of the police officers concerned to question ToWaliria at length, both as to his own part in Mr. Emanuel’s death and as to the part played by anyone else therein, produced such an unfairness as should vitiate what I have held in part to be a voluntary statement. I cannot see that there was such unfairness. Whilst the questioning evidenced by the record of interview was searching except for the one instance that I have already dealt with it does not show any attempt to overbear much less entrap. There is nothing in the answers which, prima facie, shows that ToWaliria was confused or disturbed and nothing in what I see to be the general circumstances existing that morning which would lead me to think that there has been such oppressive conduct on the part of the police officers as to make it unfair to him to admit such of the record of interview as I have held to be voluntary. In all the circumstances I do not think I should exercise my discretion in ToWaliria’s favour.

I come now to the final submission by Mr. Lusher which goes to the admission of the record of interview as a whole. He submitted that on the Crown case here this document is one of a confessional nature which is put forward as containing admissions as to the nature of the crime with which ToWaliria was charged. He argued that the matter contained in the document must be related to the offence with which the accused is charged and this document does not come within that category and consequently should be rejected at the outset. He went on to submit that it contains nothing by way of confession or admission of wilful murder. He then made some analysis of the document and of the interpreters’ evidence with relation to the words “kilim” and “kilim i die”. There was nothing in the record of interview which could be taken as an admission of wilful murder and as the Crown in opening had said in effect that there was no other evidence against ToWaliria than that contained in the document it was inadmissible on this charge. The submission was novel, no authority was quoted in support of it and I think it is misconceived. So far there is evidence going generally to the circumstances of the death which I have not heard. Mr. Brennan informed me that there are other small pieces of evidence which he proposed to lead and which will have relation to ToWaliria. There are admissions in the document which if I accept when I come to consider its weight will show that ToWaliria stabbed the deceased man. The intent or lack of it with which he stabbed will no doubt be a matter of inference when I have heard all the evidence for the Crown. In my opinion, the document is not inadmissible on the ground urged and I would reject this argument.

Accordingly I rule that the record of interview up to and including question 56 as so numbered in the English translation be admitted into evidence.

RULING ON MOTION TO STOP TRIAL—DEPUTY CROWN SOLICITOR ACTING AS LEGAL ADVISER TO POLICE AND PROSECUTION.

Mr. Lusher has submitted that at this moment I should bring this trial to an end. The submission arises in this way. From evidence given yesterday afternoon it appeared that Sub-Inspector Baker had two conferences with Mr. Pratt, Deputy Crown Solicitor at Rabaul—one on the afternoon of Sunday, 22nd August, 1971, and the other on the early morning of 26th August. Both were to discuss legal aspects of the police investigation, that investigation being then in progress, into the death of Mr. Emanuel. It was stated, and I accept as the fact, that Mr. Pratt appeared for the Crown in the committal proceedings against the accused and he appears in this trial as junior counsel assisting Mr. Brennan of Her Majesty’s Counsel, who leads for the Crown.

Mr. Lusher based his submission on the principle that justice must appear to be done and he said that justice does not appear to be done when the Deputy Crown Solicitor, as it now appeared, had not only been advising the police on the legal aspects of their investigation before at least some of the charges in this case were laid, but followed up his advice by assisting to prosecute those very charges. Mr. Lusher made it clear that in his submission it was entirely proper for the Deputy Crown Solicitor to advise the police and also to act as a prosecutor, but to act in both capacities in the one case breached the principle. He amplified that to some extent this morning with further submissions that it was an irresistible inference that Mr. Pratt must have taken some part in the preparation of the indictment, or perhaps the indictments that have been at one time or another presented in this case.

I do not propose to go any further into the argument. In my opinion there is nothing that has happened or been said in these proceedings to lead to a conclusion that justice is not being seen to be done. Apart from a little and understandable heat which entered into the Crown’s submission this morning—some submissions made by Mr. Lusher seemed to carry an implication which could be thought to be personally attributable to Mr. Pratt, from which improper conduct could be attributed to Mr. Pratt—apart from that the conduct of the prosecution has been patently beyond reproach, as I and the public would expect, and I have no reason to anticipate that it will not continue. And I propose to continue with the trial.

RULING ON CROSS-EXAMINATION UPON CREDIT OF WITNESS

This is a matter which has caused me considerable concern, not only now but earlier in this trial. Mr. Carruthers seeks to put a series of questions to Inspector Bell relevant to advice which he may or may not have received from the Deputy Crown Solicitor at Rabaul on the afternoon of Sunday 22nd August.

As I understand him he hopes to be able to show that there has been, or may have been, a deliberate flouting of advice given to the police inspector. There may be other advantages to his client, which I for the moment cannot conceive, that he may also seek to obtain.

Mr. Brennan for the Crown has objected to this line of questioning, in the first place because he says a privilege exists in the case where a senior officer of police—in this case the officer in charge of the investigations into the death of Mr. Emanuel—seeks advice from the Deputy of the Crown Solicitor here in Rabaul. And he puts it much higher, in that there is or he avers that there is a general Crown privilege existing where one department or branch of government seeks advice from another branch or department of government which is the appropriate branch to give that advice. That is I think Mr. Brennan’s case.

In the second place, although I think this is the primary matter for consideration, he has submitted to me that this line of questioning should be excluded on the grounds of irrelevance, that is irrelevance as I understand it to the credit of the witness in the box, Mr. Bell. The only way in which I can see that it could be relevant is, if successful, in showing that the Inspector is a man who is prepared to deliberately flout advice given to him by the Crown in the conduct of his investigation, and to flout it to such an extent as to possibly deliberately break the law in the course of that investigation.

This of course must be looked at in the setting of this voire dire which is an attack on the admissibility of a statement made by the accused man, ToGogol, a statement which it is said will be inadmissible—firstly as having been involuntarily made, and the basis of that involuntariness being the inducement on ToGogol to make a statement brought about by his arrest at 10 o’clock on the morning of 22nd August his detention without cause at the police station at Rabaul, and his continued incarceration there under conditions which will be alleged to be disgraceful, for a period of some 96 hours. I might note in passing that none of these matters seem to depend upon the credit of Mr. Bell.

Secondly, assuming that I would uphold the statement that the record of interview was voluntarily made then the general conditions of unfairness attendant upon this making should lead me to exercise my discretion against its inclusion at the trial. It is only with regard to the second aspect that this line of questioning attacking the credit of Mr. Bell could have any relevance.

On the whole, I think that this line of attack is too remote to urge upon me in my consideration of the unfairness of admitting the statement. I have I think already, and indeed on previous occasions, allowed a great deal of latitude in this matter of cross-examination upon credit. I think this is going just too far. I am not saying that in any criticism, but it is always a difficult question to know just where the bounds of cross-examination as to credit lie. I think this is on the other side of these bounds, and accordingly I would not allow the examination on that premise.

I say nothing about the question of the solicitor/client relationship or the privilege between government departments. That is a difficult subject and requires more study and reference to authority that we can embark upon at this moment.

RULING ON CROSS-EXAMINATION OF ACCUSED THOMAS PAINUK

The Crown announced its intention, or desire, to cross-examine the witness now in the box, the accused man Thomas Painuk, as to some previous convictions. This application was strongly opposed by Mr. Hamilton for the accused man and I have heard a good deal of argument on the application.

In my view s. 6 does govern the situation in this case—s. 6 that is of the Evidence Ordinance 1934-1969.[clxxx]³⁴ I am of the view that at common law up until 1898, an accused man could not give evidence in any criminal proceedings. That position of course was changed in England by the Criminal Evidence Act of 1898, an Act which was reproduced in substantially the same terms in the Australian States and in New Guinea by s. 6 of the Ordinance.

N1>I think the clear meaning of sub-s. (1), where it is said that a person charged with an offence shall be a competent witness for himself in any proceedings in connection with the offence, can only be read naturally as meaning any proceeding at all and a hearing on the voire dire in my opinion is a proceeding in connection with an offence. That being so, sub-s. (4) is applicable. And I should say, with regard to sub-s. (1) that I say this despite the implications that might be drawn or possibly could be drawn from Cowell’s case[clxxxi]35 and from Baldwin’s case[clxxxii]³⁶, which none of us have had the opportunity of reading. In Cowell’s case (supra) the report does not show any argument dealing with s. 1 of the Criminal Evidence Act of 1898. I think the reasoning of Mr. Neasey (as he then was) in Vol. 34 Australian Law Journal, is of help, but it is interesting to note in the article that the whole tenor or purpose of the article is to show that questions should not be allowed on the voire dire tending to show that the accused person is guilty of the offence of which he is charged. That question, of course, does not arise in this case because I ruled at the outset that no questions of that nature would be allowed.

N1>We come to sub-s. (4) and its application to the matter before me. A long line of English cases shows that if there is an imputation on the nature or conduct of the prosecution—albeit that imputation be in the development of the defence—the section applies and, subject to the exercise of discretion, cross-examination as to character may be allowed. The King v. Hudson[clxxxiii]³⁷, The Queen v. Cook[clxxxiv]³⁸ and Flynn’s case[clxxxv]³⁹ all show this to be the case, and on skimming—as I did during the lunch-hour—the case of The Queen v. Selvey[clxxxvi]⁴⁰, it is noticeable how Hudson’s case (supra) forms the basis for the decision of all the noble Lords in that case. And of course the same view of the law is taken in the case of Dawson[clxxxvii]⁴¹ which was cited to me this morning. These cases show there is no gloss to be placed on the section. I should say now that I do not think that Dawson’s case (supra) necessarily approves of Flynn’s case (supra) in all that it decided. It was only Mr. Justice Dixon (as he then was) of the Justices who decided that case who made any detailed reference at all; Sir Alan Taylor and Sir William Owen both merely referred to it in passing and did not of necessity approve all that was said, particularly of the passage cited by Mr. Justice Lucas in Matthews’ case[clxxxviii]⁴².

N1>I have as I said skimmed Selvey’s case (supra) over the lunch-hour and that was a case argued over some eight days and decided unanimously by the Law Lords who heard the case and in which unanimous disapproval of the passage in Flynn (supra), upon which Mr. Justice Lucas founded, was expressed. However the case does show that there is, and it approves of, a discretion in the trial judge to exclude cross-examination of the sort required to be indulged in here. There is considerable discussion of the genesis of the discretion in Selvey (supra) and in my view the discretion is founded on the basis of the general power of the court in a criminal case to ensure a fair trial. I refer to a passage at p. 1533 of the report, in the speech of Lord Pearce where he said: “There is an overwhelming mass of distinguished authority that the discretion exists. It is not necessary to consider here whether that discretion has been evolved in relation to section 1 (f) from the case of Rex v. Watson (8 Cr. App. R. 249) onwards, or whether it comes, as in my opinion it does, from the inherent power of the courts to secure a fair trial for the accused, or, to use the words of Viscount Simon ([1952] A.C. 694, 707) ‘the duty of a judge, when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused.’ “

N1>It has been pointed out by counsel for the Crown that there appears to be no case on the situation where character is sought to be brought into issue on a voire dire, and it was also pointed out that the reason for the existence of discretion is to secure a fair trial for the accused and to ensure that he will not be unduly prejudiced before a jury by allowing material to be considered by them, the prejudicial effect of which may well outweigh its probative value.

N1>On the voire dire, in my view, the situation is somewhat different. The issue here is not guilt or innocence of the accused; it is the voluntariness or otherwise of what is set up as confessional material, and in my view I should pay regard to what was said by their Lordships in the Selvey case[clxxxix]⁴³—to the general maxim: is it fair in all the circumstances to allow cross-examination of the accused to be entered upon? In this particular case, or rather in this trial generally, I have announced earlier that I would allow a wide and free-ranging cross-examination where the Crown evidence was to be tested, and as far as I can recall I have given full effect to that policy.

In this particular case some very serious allegations have been made against the police officer concerned, Sub-Inspector Watkins—allegations which if true would, and I think should, detract seriously from his standing as a police officer. It seems important to me that I should know what sort of a man is making these allegations; what credibility should I give him? By way of example, assume that he had a conviction or convictions for perjury—of course I am not saying that is the case but assuming that to be so—surely the court should be able to be made aware of that fact in assessing whether his allegations of threats of brutality are proven.

In the result in this case I have decided to allow the cross-examination which Mr. Brennan seeks. I think fairness to both parties in this trial demands it of me and I think that is the ideal which I shall seek because the Crown deserves fair treatment just as does the accused—I am not saying to the same extent, because there are special rules throughout the criminal law for the protection of the accused. But I do not see that there is any rule here compelling me to disallow this cross-examination and I think there is every reason why I should allow it.

RULING ON APPLICATION TO DISCONTINUE TRIAL OF TAUPA AND PAINUK

I propose to reject Mr. Martin’s application. Dealing with his second ground first, that is in substance that it is impossible for the counsel now briefed for Taupa to recapture the atmosphere and to know what has gone on, and on that account to adequately represent Taupa, whilst I appreciate the force of the submission and the position in which Mr. Martin and his junior find themselves that is not sufficient in my view to discharge myself in relation to Taupa.

I suppose in a sense this is a unique situation. I certainly have never heard of a change of counsel halfway or more through a murder trial, but it is no more in my view than perhaps an extreme example of the difficulties which counsel have to meet in the conduct of the case and which have to be overcome.

The first ground has caused me greater concern. I have been thinking about the application first made on Monday last. In the first place let me say that of course I have not come to any conclusion at all in relation to any of the accused in this trial because I am at a situation now where I have been dealing for weeks with the admissibility of statement after statement. It is only now that these problems have been dealt with that I am able to begin to think of the facts of the case, of the proofs of the case against these accused. But as Mr. Hamilton urged upon me a few moments ago the real problem is whether what I have said in relation to Painuk—and the same matter was urged upon me by Mr. Martin—would lead people to suspect or to think that I have disqualified myself from fairly and properly trying their clients, disqualified myself because of the views which it might be thought I held from the words I have used as to the credibility of their clients.

As I have earlier said, this is a problem which arises from time to time in this country where the judge is a judge of fact and has not the assistance of the jury—I should not say the assistance of the jury, but where there is no jury to decide upon guilt or innocence.

The burden imposed on the judge in those circumstances is a very difficult one, but judges before me and my brothers on the Bench have been and are discharging this task almost daily; also from time to time expressing opinions, possibly not in the same language as I have used but expressing opinions as to the credibility of accused persons who claim that their statements were not made voluntarily.

Giving the matter the best consideration that I can, I do not think anything I have expressed has been expressed in such a way as to lead to the belief that I have a closed mind as to the credibility on matters in issue of the persons concerned.

I have certainly not formed the opinion, nor have I expressed the opinion or said anything which could be taken as an expression of opinion, that I would not believe either Taupa or Painuk if their credibility comes before me for consideration again.

I feel that all I can do is to do what I have so often had to do, continue with the trial and retain what is at present an open mind as to the veracity or otherwise of what might be said by either of the accused persons if I should be called upon to do so.

Accordingly I propose to retain both Taupa and Painuk in the trial.

RULING ON SUBMISSIONS OF NO CASE TO ANSWER

At the close of the case for the Crown counsel for ten of the accused arraigned before me have made submissions that their clients should be acquitted, in each case on two bases: firstly, that there is no case to answer and, secondly, that if there is a case to answer I am justified at this stage in refusing to convict on the evidence led by the prosecution. O’Bryan J. in Benney v. Dowling[cxc]⁴⁴ described acquittal at this stage in appropriate cases as a very convenient practice. Mr. Hamilton compendiously summed up the position when he began his submission by saying that I cannot convict his client, Thomas Painuk, and if I can I should here and now come to the conclusion that I will not. Each application has been strenuously resisted by counsel for the Crown.

N1>The case presented by the Crown in essence is that the hand that intentionally and fatally struck down Errol John Emanuel on 19th August, 1971, was that of the accused man ToWaliria, that he was instigated and assisted in his act by the accused man Taupa, and that each of the other accused in their respective fashions either aided ToWaliria by his assenting and encouraging presence or at least was in some way knowingly concerned in the commission of the wilful murder of Emanuel.

N1>Each of the ten accused men is indicted as a principal offender and he is so indicted by what the Crown says is a proper application of s. 7 (b), (c) or possibly (d) of the Criminal Code (Queensland adopted) or of s. 5 of the Commonwealth Crimes Act which is in operation in New Guinea. The relevant part of s. 7 reads:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:

(a)      Every person who actually does the act or makes the omission which constitutes the offence;

(b)      Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)      Every person who aids another person in committing the offence;

(d)      Any person who counsels or procures any other person to commit the offence.”

I think it unnecessary to pronounce upon the difficult question of the applicability and effect of s. 5 of the Commonwealth Crimes Act and of its interrelationship or lack of it with s. 7 of the Code. I am of the view that with one exception the two sections cover precisely the same ground. That exception is the presence in s. 5 of the words “knowingly concerned in . . . the commission of any offence.” For reasons which I hope will subsequently appear I do not think that in the circumstances of the case before me these words have any applicability. If each accused man cannot be brought within s. 7 there is nothing additional in his circumstances to bring him within the description of one “knowingly concerned” otherwise.

I have been furnished with a written submission by counsel for the Crown which is noteworthy both for the industry manifestly involved in its preparation and the learning displayed in it. I have found this submission of the utmost assistance in enabling me to come to some general conclusions as to the law applicable in this case. I regret that time does not permit me to undertake a detailed analysis of the submissions made. It must suffice to say that I am of the view that the Code jurisdictions have generally followed the common law principles developed with regard to principals of the first and second degree and accessories, albeit the language used, at any rate in the Criminal Code (Queensland adopted) of New Guinea, does not include these terms.

Although there is no definition of “aid” or “aiding” in the Code and as Philp J. remarked in R. v. Solomon[cxci]⁴⁵ the word “abet” is not used, it is interesting to note that as early as 1903 in Queensland in R. v. Kenniff[cxcii]⁴⁶ Cooper J. expressed the opinion that s. 7 is “really a declaration of the common law” and Griffith C.J., the virtual author of the Code, at p. 43 refers to the position of an “aider and abettor”. The New Guinea Criminal Code was adopted from Queensland in 1921. I have given some consideration to the view of Philp J. (expressed in R. v. Solomon[cxciii]⁴⁷ ) that criminal responsibility must be determined solely by the proper interpretation of the provisions of the Code which he says aspires to base criminal responsibility in logic, and further, that it requires consideration of fine distinctions concerning that responsibility which are unknown to common law. At a later stage I will say a little more with regard to Philp J.’s application of s. 7 and s. 23.

N1>I agree with the submission made on the part of the Crown that at common law the class of principals in the second degree includes one who—(a) encourages or otherwise assists in the commission of a felony; and (b) is present at such a place as permits him to encourage or assist as the case may be. Further, I agree that it is not necessarily essential to prove either—(i) any physical participation other than presence, or (ii) the existence of any pre-arranged plan or the accused’s knowledge of any such plan. However, encouragement in one form or another is a minimal requirement before an accused person may properly be convicted as a principal in the second degree of any crime—see R. v. Allan[cxciv]⁴⁸, per Edmund Davies L.J.

N1>I find particularly helpful and apt and I respectfully adopt what was said by that great lawyer, Sir Leo Cussen in R. v. Russell[cxcv]⁴⁹: “Various words such as ‘aiding’, ‘abetting’, ‘comforting’, ‘concurring’, ‘approbating’, ‘encouraging’, ‘consenting’, ‘assenting’, ‘countenancing’ are to be found in the authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has as I have indicated a wide meaning. The common dictionary meaning of ‘abetting’ is ‘encouraging’ or ‘countenancing’ and this is to be remembered when the words ‘aiding or abetting’ alone are used. All the words abovementioned are I think instances of one general idea: that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime and is by his words or conduct doing something to bring about or rendering more likely such commission.” But of course those words or that conduct must be wilful or intentional. As was said by Megaw L.J. in R. v. Clarkson[cxcvi]⁵⁰: “it is not enough then that the presence of the accused has in fact given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged.”

N1>In my view Mr. Brennan properly stated the law when he posited that the principal in the second degree whether under the Code or at common law must have a culpable mental state when he aids and abets. His actions must be willed not accidental, intentional not unintentional. If presence is relied upon the presence must not be accidental but willed, that presence must be with the intention of encouraging or assisting the commission of the crime charged. I did not understand any counsel to quarrel with these propositions.

N1>In this case Mr. Brennan says there can be no question but that the aiding and abetting by the present accused is an aiding and abetting of the crime of wilful murder and of no other crime and he does not seek to suggest any other or lesser crime for which they or any of them should be held criminally responsible.

N1>There is one aspect in which the provisions of s. 7 may be wider than the common law. Section 7 (b) attaches criminal responsibility to those who do not in fact aid in the commission of an offence but who engage in conduct for the purpose of aiding. I agree with Mr. Brennan’s proposition that under this subsection an offender who has tried to aid may be guilty of the crime committed even though he did not succeed in aiding. But as will be apparent when I come to consider the individual accused I do not regard this subsection as being relevant in this case.

N1>As I understand the Crown case it is not suggested that any direct physical aid was given by any of the ten people whose cases I am now considering. In all the cases before me a great deal turns on the presence of the accused at the scene of the commission of the crime. In most if not all it cannot be said that they were in the presence of ToWaliria and Emanuel, at least in the sense of being in their sight and presence, and in those circumstances it seems to me that they must be somehow fastened with knowledge of a plan to kill the District Commissioner to which plan they subscribed.

N1>In discussing participation of a number of persons who took part in what was obviously a riotous assembly and in the subsequent demolition by burning of a house, Littledale J. in R. v. Howell[cxcvii]⁵¹ had this to say:

“But I take it to be settled at this day, that all those who assemble themselves together with a felonious intent, the execution whereof causes either the felony intended or any other to be committed, or with an intent to commit a trespass, the execution whereof causes a felony to be committed, and continuing together abetting one another till they have actually put their design in execution; and also all those who are present when a felony is committed, and abet the doing of it, as by holding the party while another strikes him; or by delivering a weapon to him that strikes, or by moving him to strike, are principals in the highest degree, in respect of such abetment, as much as the person who does the fact, which in judgment of law is as much the act of them all, as if they had all actually done it; and if there were malice in the abettor, and none in the person who struck the party, it will be murder as to the abettor, and manslaughter only as to the other. It doth not seem necessary to the making an abettor a principal, that the person on whom the felony is committed should be under any terror from the abetment, and by reason thereof discouraged from making that defence which otherwise he might have made; but it seems to be sufficient for this purpose, that the person who does the fact is encouraged and emboldened in it from the hopes of present and immediate assistance from the abettor, whether he be within view of the fact, or not.”

And at pp. 449-450[cxcviii]⁵² he quoted with approval the following passage from the 1st ed. of Russell on Crime:

“In order to render a person a principal in the second degree, or an aider and abettor, he must be present aiding and abetting at the fact, or ready to afford assistance, if necessary; but the presence need not be a strict actual immediate presence, such a presence as would make him an eye or ear witness of what passes. So that, if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself and each takes the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged; they are all, provided the fact be committed, in the eye of the law, present at it; for it was made a common cause with them, each man operated in his station at one and the same instant, towards the same common end, and the part each man took tended to give countenance, encouragement, and protection to the whole gang, and to ensure the success of their common enterprize.”

I might add that this passage remains with only minor textual change as a current statement of the law in the 12th ed. of Russell at p. 139.

The difficulty in most if not all of the cases before me is that whilst it could be said that each accused was aware of a plan or design or stated intention to kill Emanuel it does not necessarily follow that he set out with the intention of taking part in or even countenancing that crime. The passage just cited illustrates the proposition that presence need not be a strict actual and immediate presence provided one can find that that presence wherever it should be was and remained up to the instant of the commission of the offence pursuant to a common design. It is the discovery of the ambit or limits of that design that I have found extraordinarily difficult in perusing the sketchy material contained in the several records of interview. What I have to consider in the case of each accused is whether or not encouragement or other assistance was given by him to the commission of the crime of wilful murder and whether that encouragement or assistance was intentionally given. This involves a consideration of each accused’s appreciation of what it was that he was setting out to do or accomplish on 19th August.

The cases show that “the fact that a person was voluntarily or purposely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do or at least to express his dissent, might under some circumstances afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.” The words are those of Hawkins J. in R. v. Coney[cxcix]⁵³. The same idea finds expression by several of the other Judges who formed the majority of the Court in that case and also by the Court in R. v. Clarkson [cc]⁵⁴. To the same effect also spoke Cussen A.C.J. in R. v. Russell[cci]⁵⁵ when he said at p. 68: “If a person present at the commission of a crime in the opinion of the jury on sufficient evidence shows his assent to such commission he is guilty as a principal.” Presence at the commission of a crime may in the circumstances show assent or encouragement to its commission and it seems to me that in the case of each of the ten accused men currently under discussion what I must consider at this stage is whether there is sufficient evidence to show:

N2>(a)      that Emanuel was wilfully murdered;

N2>(b)      that he was present when Emanuel was murdered;

N2>(c)      that he knew of a plan or intention to kill Emanuel;

N2>(d)      that he intentionally encouraged that wilful murder:

(i)       by word,

(ii)      by any action of his, or

(iii)     by his mere presence.

When I say sufficient evidence I refer to proof of facts and circumstances from which a relevant inference may properly be drawn. If there is such evidence then there is a case to answer. This is the first step to be taken and it is only after resolving these questions that I need take the second step of considering whether I am satisfied beyond reasonable doubt—a step which with some force and justification Mr. Brennan submitted I should not take at this stage.

It is easy enough to speculate on the sequence of events both prior to and on the morning of 19th August. By way of example, the record of interview of Otto Kaliop gives a fairly full account of those events. However, as is apparent from this and so many other of the records of interview they contain a largely undifferentiated mixture of personal knowledge and knowledge which is hearsay or perhaps even the result of guesswork. Although it is trite to say so it must at all times be clearly borne in mind that the matters contained in each record of interview can provide no evidence against any accused other than the person being interviewed.

Common to all cases is the necessity of proving that Emanuel was wilfully murdered. Section 7 depends for its applicability on the commission of an offence as does also s. 5 of the Commonwealth Crimes Act. The offence in this case is the crime of wilful murder and it is not disputed by the Crown that there must be proof of the commission of that crime before any of the accused can be convicted as a principal in the second degree. The law is accurately stated in Russell on Crime, 12th ed., Vol. 1, p. 128, where it is said: “there is one crime and that it has been committed must be established before there can be any question of criminal guilt of participation in it”—a passage which was adopted by the Privy Council in Surujpaul v. The Queen[ccii]⁵⁶.

N1>Whether the wilful murder of Emanuel has been committed must be considered in each individual case but there are some general matters in evidence which are relevant in that consideration and to these I now turn.

N1>On the morning of 19th August at about 6.10 a.m. the witness Moorhead, who was then plantation manager on Kabaira Plantation, set part of his labour line to work on the plantation. He returned to the area where he had placed them at about 7.30 a.m. when he there saw between 25 and 30 Tolai people. They were as he described them “all painted up” and they were holding bush knives and sarifs. They began cutting grass and bush. The men he said had painted faces. He stated that a number of Tolais from the Kabaira area claimed ownership of this land. Amongst those present on his arrival he recognized the accused Taupa. He addressed the group but directed his words to Taupa saying, “Clear off the property.” He then sent a message to the police. Superintendent Feeney received the message at about 8.30 a.m. and then got in touch with Emanuel. The two of them arrived at Kabaira at about 9.00 a.m. The Superintendent saw a group of grass-cutters about 50 yards on the plantation side of the track leading from the North Coast Road. They were cutting grass and vegetation on the plantation site but he observed no peculiarity about their dress and they seemed to be dressed normally. He spoke to them and in particular to a man whom he knew as Ilik. After he spoke to them some left where they were standing and moved back across the track into the dense foliage of the Rasimen Reserve. There seemed to be general movement at about that time. Moorhead was then present. Emanuel got out of the police car and in Feeney’s opinion was visible to anyone. Feeney and Emanuel got back into the car and drove away to find a man named ToGigie who was a leader from Volavolo and as far as Feeney was able to say the grass-cutters ceased their work at about this time.

N1>The Superintendent and the District Commissioner returned to the scene at about 9.20 a.m. and Moorhead drew the former’s attention to a group of males who were standing on the track abutting the reserve. He (Feeney) walked down and saw that these men were in a single line with Taupa standing in front. Their bodies were bare from the waist up, they were standing with their arms folded and appeared to be unarmed. They wore what appeared to be chalk or some type of markings around their faces and on their foreheads. This was of a black and white colour and seemed to be interlaced with red. He also noticed that the men standing in the line had about their necks necklaces appended to which were what he thought to be tanket leaves. His general impression was that each man had a white feather in his hair with a black and red circle imprinted on the feather. Taupa had a necklace to which was appended a white circular disc with serrated edges. Taupa appeared very agitated. He was calling out in a loud voice and gesticulating with his hands. The Superintendent heard him say words in broken English, “the title is not clear” or “the land is not clear”. He was about three or four feet away from Taupa at this time. Emanuel walked past the Superintendent from behind, touched Taupa on the arm and said words which the Superintendent took to be, “Let’s go and talk.” Previous to this he had noticed that Taupa when calling out was calling out generally in what he took to be the Kuanua language, his voice was shaking and he had the impression that he was very emotional. Taupa was perspiring fairly heavily and he noticed that his stomach was palpitating. He did not recognize any other people in this line. He was not clear as to the number of men in the line but it was somewhere between 8 and 13.

N1>After Emanuel spoke to Taupa the two of them walked along the track away from where Feeney was standing and further into the plantation from the North Coast Road from which they had entered. They were proceeding towards a track junction. They passed out of his sight and he did not observe them reach this junction nor did he see the two of them together again. This was at about 9.30 a.m.

N1>The Superintendent caused the names of the remaining men that were in the line to be taken by a Tolai constable and whilst this was going on some of these men were moving about, some were returning into the reserve and coming back out again onto the track. There were other Tolais about who were not part of this line but who moved amongst the men of it and, as the Superintendent put it, there was a general movement amongst males at this time. There were people whom he took to be grass-cutters still on the plantation but they were standing or sitting about. Moorhead pointed something out to him and he saw a number of males standing on a nearby hill.

N1>Moorhead went off in a police vehicle towards the hill. There he found approximately 17 Tolai men. According to his evidence this was about ten minutes after he had left the Superintendent, and he talked with the men amongst whom he recognized two, named Titi and Anton. Titi was originally arraigned before me with the present accused but I have adjourned his case. The men seen by Mr. Moorhead did not appear to have weapons. Moorhead suggested to the group that he wanted them to come down and discuss the situation with the District Commissioner. After talking for about four or five minutes Anton got into his vehicle and returned down the hill with him. He saw some of the group going down the side of the hill towards where the police were gathered. After he left the hill he heard news of Emanuel’s death on the radio. This must have been at some time after 10.15 a.m. At this time at least some of the group on the hill had moved off it in the general direction of where the police were standing. On the reserve side of the track there was dense vegetation.

N1>When Emanuel had not returned by about 10.00 a.m. Feeney set off through the bush on the reserve side of the track with a constable. He proceeded for about 100 yards and then turned right walking for about 175 yards before he came out onto a track which branches to the left at the junction to which I have referred from the main or entrance track. He came upon the body of Emanuel and felt for his pulse. He “thought rigor mortis had commenced to set in. He was quite cold.” The time was then exactly 10.15 a.m.

N1>Mr. Feeney then observed a trail of what appeared to be blood which led back to the junction of a track leading down to Rasimen village. This was about 30 paces from the body, and about 8 feet away he found the top half of the old bayonet (Exhibit C) the bottom half of which was on the other side of the track. Sub-Inspector Bryant who later saw the pieces of this bayonet in the position in which they had been found by Feeney observed that there was a dull red stain on the metal which ran the whole length of the shorter piece and about half-way along the longer piece. It appeared to have soaked into the metal and to be almost dry.

N1>Death was due to a wound inflicted by a sharp instrument of a breadth of about 2 ½ centimetres, the point of entry of which was in the seventh inter-costal space and the length of penetration in the vicinity of 20 centimetres. The wound penetrated the lower lobe of the right lung, punctured the media stynum, nicked the ascending aorta and penetrated the left lung. There was another branch internally of this penetrating wound which commenced about 5, 6 or 7 centimetres in from the chest wall and went through the lower lobe of the right lung. External bleeding was initially limited although after withdrawal of the fatal instrument a good steady flow of blood might be expected. The capability of his lungs to inflate was immediately limited and Emanuel was evidently able to go no further back along his path than about 30 yards when he collapsed and died.

N1>It is reasonable to infer that he died shortly after 9.30 a.m. for at 10.15 a.m. his body was already cooling and, as I have said, in Feeney’s opinion rigor mortis had begun to set in. As Mr. Brennan submitted Emanuel’s body was penetrated by a deadly weapon and to a deadly extent. In my view the inference is clearly open that the injury was inflicted with the intention to kill, and a jury would be entitled to infer that Emanuel was wilfully murdered by somebody with the bayonet (Exhibit C). I am not unmindful of Mr. Carruthers’ forceful argument to the contrary. Suffice it to say that I do not accept this argument and I would hold that there is sufficient evidence of wilful murder upon which a jury could find that Emanuel had been so murdered.

N1>Before I pass to the consideration of the evidence available against each of the accused whose cases I am now considering I make the general remark that in most of these cases the principal evidence is to be found in the answers given by them to questions put by interrogating police officers during the course of what were generally lengthy interviews. During these interviews a great number of questions was asked seeking to ascertain the actions of all persons thought to be concerned or to have had some hand in Emanuel’s death. The questions range over a wide area both of time and place but a significant feature, again generally speaking, is the absence of questions asked as to the participation of the individual being questioned, and more particularly as to his knowledge of the detail of what the Crown consistently referred to as a plan to kill Emanuel, and as to his own conception of the part he was expected to play in the achievement of that plan. I have a much fuller realization now of the difficulties which confronted the small and comparatively inexperienced team of police investigators in trying to find a starting point for an investigation and to get some over-all picture of what happened and who was likely to be involved, but the failure to inquire along the lines I have mentioned has added greatly to the difficulty of my task and has left me in a situation in which I have had constantly and continuously to attempt what for me has been a difficult differentiation between proper inference and improper speculation.

N1>I come now to the individual cases, and I will deal with them in the order in which they appear on the indictment. Where I have found a case to answer I do not propose at this stage to publish reasons.

N1>Neither will I at this stage consider whether when I have found a case to answer the accused person concerned should be convicted. That consideration must wait until the close of all the evidence.

N1>[His Honour then found that seven accused had, and three accused did not have, a case to answer.]

N1>Verdicts: Taupa, ToWaliria, ToMarum, ToPait and Kaliop guilty of wilful murder. Remaining accused, not guilty of wilful murder.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

R>

[cxlvii]span>Infra p. 193.

[cxlviii]Infra p. 144.

[cxlix]Infra p. 150.

[cl]Infra p. 188.

[cli]Infra p. 193.

[clii]Section 560 of The Criminal Code reads:

N1>When a person charged with an indictable offence has been committed for trial and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.

N1>The indictment is to be signed and presented to the Court by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council.

[cliii]Ruling of 10th June, 1970. (Judgment No. 580—unreported).

[cliv](1935) 53 C.L.R. 1.

[clv][1964] P. & N.G.L.R. 200, at p. 245.

[clvi]Section 561 of The Criminal Code reads:

N1>A Crown Law Officer may present an indictment in any Court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.

N1>An officer appointed by the Governor in Council to present indictments in any Court of criminal jurisdiction may present an indictment in that Court against any person for any indictable offence within the jurisdiction of the Court, whether the accused person has been committed for trial or not.

[clvii][1964] P. & N.G.L.R. 200.

[clviii][1967-68] P. & N.G.L.R. 104, at p. 109 et seq.

[clix] (1970) 17 F.L.R. 65, at p. 75 et seq.

[clx][1960] Qd. R. 443.

[clxi] [1938] St. R. Qd. 285, at p. 287.

[clxii] [1959] Qd. R. 486, at p. 489.

[clxiii] (1948) 76 C.L.R. 501, at p. 513.

[clxiv](1936) 55 C.L.R. 235.

[clxv](1948) 76 C.L.R. 501.

[clxvi](1950) 82 C.L.R. 133.

[clxvii](1962) 108 C.L.R. 591.

[clxviii][1963] P. & N.G.L.R. 242.

[clxix](1948) 76 C.L.R. 501

[clxx] (1948) 76 C.L.R. 501, at p. 511.

[clxxi] (1948) 76 C.L.R. 501, at p. 513.

[clxxii][1890] UKLawRpKQB 125; (1890) 25 Q.B.D. 494, at p. 498.

[clxxiii](1863) 3 F. & F. 693; 176 E.R. 318.

[clxxiv][1950] HCA 25; (1950) 82 C.L.R. 133, at p. 155.

[clxxv](1970) A.L.M.D. 370.

[clxxvi](1964) 81 W.N. (N.S.W.) Pt. 1 572.

[clxxvii](1970) A.L.M.D. 370.

[clxxviii][1946] NSWStRp 54; (1947) 47 S.R. (N.S.W.) 284, at pp. 313, 314.

[clxxix][1950] HCA 25; (1950) 82 C.L.R. 133, at p. 155.

[clxxx]Section 6 (1) of the Evidence Ordinance, 1934-1969 reads:

[clxxxi]Every person charged with an offence shall be a competent but not compellable witness for himself in any proceeding in connection with the offence.

N1>Section 6 (4) reads:

N1>A person charged with an offence and called as a witness in pursuance of this Ordinance shall not be asked or required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged or that he is of bad character unless—

N2>(a) the proof that he has committed or been convicted of the other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or

N2>(b) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish (sic) his own good character or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or

N2>(c) he has given evidence against any other person charged with the same offence.</fc>

N1> [1940] 27 Cr. App. R. 191.

[clxxxii][1931] 23 Cr. App. R. 62.

[clxxxiii][1912] 2 K.B. 464.

[clxxxiv][1959] 2 Q.B. 340.

[clxxxv][1961] 3 W.L.R. 907.

[clxxxvi][1968] 2 W.L.R. 1494.

[clxxxvii][1961] HCA 74; (1961) 106 C.L.R. 1, at p. 16.

[clxxxviii] [1965] Qd. R. 306, at p. 310.

[clxxxix][1968] 2 W.L.R. 1494.

[cxc][1959] VicRp 41; [1959] V.R. 237, at p. 242.

[cxci][1959] Qd. R. 123.

[cxcii] [1903] St. R. Qd. 17, at p. 28.

[cxciii][1959] Qd. R. 123.

[cxciv] [1963] 3 W.L.R. 677, at p. 683.

[cxcv] [1933] V.R. 59, at p. 66.

[cxcvi] [1971] 1 W.L.R. 1402, at p. 1406.

[cxcvii][1839] EngR 970; (1839) 9 Car. & P. 437, at p. 448; [1839] EngR 970; 173 E.R. 901, at p. 907.

[cxcviii][1839] EngR 970; (1839) 9 Car. & P. 437; 173 E.R. 901, at p. 907.

[cxcix][1882] UKLawRpKQB 30; (1882) 8 Q.B.D. 534, at pp. 539-540.

[cc] [1971] 1 W.L.R. 1402, at p. 1406.

[cci][1933] V.R. 59.

[ccii] [1958] 1 W.L.R. 1050, at p. 1053.