Gemai, Regina v [1974] PGSC 10; [1974] PNGLR 1 (17 November 1972)

1974

Papua New Guinea Law Reports - 1974

[1974] PNGLR 1 - Regina v Gemai

[1974] PNGLR 1

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

GREGORY INO GEMAI AND OTHERS

Port Moresby

Clarkson J

9-10 November 1972

13-17 November 1972

EVIDENCE - Criminal Law - Admissions - Common design - Admissibility of admissions made by one accused against other accused.

CRIMINAL LAW - Evidence - Common design - Admissibility of admissions made by one accused against other accused.

CRIMINAL LAW - Unlawful killing - Parties - Common intention to prosecute an unlawful purpose - Probable consequence of the prosecution of such purpose - The Criminal Code, ss. 7[i]1 and 8[ii]².

Three accused, G., A. and K., were charged with the wilful murder of one Benny Tauna near the Palm Tavern, Badili in Port Moresby. The first and the third accused struck the deceased shortly before he died. Each of the accused in the course of interviews made statements containing admissions of guilt and these statements were substantially the same. The interviews were conducted in Pidgin but recorded only in English. The statement of the accused A. indicated that at the time he struck the deceased the deceased was already dead and that A. knew he was dead.

Held

N1>(1)      Admissions made to the police and statements from the dock made by each accused must be isolated from admissions and statements made by either of the other accused and were not to be received in evidence for the purpose of the case against either of the other accused.

Tripodi [1961] HCA 22; (1961) 104 C.L.R. 1; R. v. Phillips and Lawrence [1967] Qd.R. 237 referred to.

N1>(2)      Inculpatory statements made in the course of the interviews should be approached with caution.

N1>(3)      Upon the facts the accused A. was a party to the offence for the purposes of s. 8 of the Criminal Code in that he joined with the other two accused in forming the unlawful purpose of assaulting the deceased and that in the circumstances of the case the killing was a probable consequence of the prosecution of that purpose.

R. v. Solomon [1959] Qd.R. 123; Murray v. The Queen [1962] TASStRp 18; [1962] Tas. S.R. 170 referred to.

N1>(4)      The unlawful killing which A. was deemed to have committed and of which he was guilty was manslaughter, not murder or wilful murder.

Indictment

The three accused were charged on the same indictment with the wilful murder of Benny Tauna who died on 19th December, 1971, as a result of injuries inflicted on him some hours earlier near the Palm Tavern, Badili in Port Moresby.

On the night of 18th December, 1971, the three accused, who are Goilalas and the deceased were drinking at the Palm Tavern. Towards closing time the accused Gregory Ino Gemai bumped into the deceased causing the deceased to spill his drink. The deceased made disparaging remarks about Goilalas. The three accused then made a plan to attack the deceased which they carried out later that night near the Tavern. The accused used lengths of wood and a knife in the assault which caused multiple wounds, one of which resulted in fatal internal bleeding.

On 2nd June, each accused separately showed police Sergeant Laiu the same spot near the Palm Tavern as that where the assault on the deceased occurred. It was the spot where the deceased’s body had been found.

Each of the accused made separate statements to the police. The Court found that the statements of the two accused Gregory Ino Gemai and Limea Kitaia revealed an intent on the part of both accused to kill the deceased and that Gregory Ino Gemai counselled the other two accused to kill the deceased, and that he also aided Limea Kitaia who struck the fatal blow, by incapacitating the deceased with the first blow.

The Court found Gregory Ino Gemai and Limea Kitaia guilty of wilful murder.

The Court found that the statement of the third accused John Toita Atuai established that this accused took part in the plan to assault the deceased. It was also found that the Crown had not excluded an honest and reasonable belief that at the time Toita struck the deceased he was to the knowledge of Toita already dead.

Counsel

D. McDermott, for Gregory Ino Gemai.

B. Hoath, for John Toitai Atuai.

J. McMaster, for Limei Kitaia.

G. Gajewicz, for the Crown.

17 November 1972

CLARKSON J: The three accused are charged with the wilful murder of Benny Tauna. The deceased died in the early hours of 19th December, 1971, as a result of injuries inflicted on him some hours earlier near the Palm Tavern, Badili.

It is not contested that each of the accused assaulted the deceased at that time but a number of problems arise when one attempts to determine the criminal responsibility which may attach to each accused.

Although the accused are indicted jointly, the substance of the Crown evidence as to the acts and intentions of the accused is contained in confessional statements made by them on 31st May, and 2nd June, 1972. In each case, a police officer interviewed the accused separately on 31st May, and recorded what was said. At a later date, 2nd June, each accused took Sergeant Laiu to the place where the deceased was assaulted and each made further admissions not in the presence of the other accused. At the trial, two of the accused made statements from the dock.

It was argued for the Crown that the three accused acted pursuant to a common design in attacking the deceased and that because of this, subsequent admissions made by one accused could be used as evidence against the other accused. This is not the view which has been adopted by a number of Judges of this Court, relying on Tripodi[iii]³. The particular passage relevant here is as follows:

“It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts.”

In the present case, where the Crown depends substantially on admissions and where there is no eye witness account of the assault, one must bear constantly in mind that the case against a particular accused depends largely on the admissions which he made. These must be isolated from admissions made by another accused. Where, as here, the stories as told by the accused are substantially the same, this process is not difficult to follow and it is unnecessary for me to consider what the proper approach would be if the statements of the two accused were so opposed that they cannot stand together. If no comparison is made in such a case two men could be convicted of an offence each on a different set of supposed facts at least one of which must be wrong. No doubt it is considerations such as this which, with others, influence the courts to treat uncorroborated confessions with caution and which may lead to a refusal, in the case I have suggested, to act on either statement.

I should also record that I agree with the submission made that the statements from the dock made by two of the accused are not evidence for the purpose of the case against either of the other accused. R. v. Phillips and Lawrence[iv]⁴.

Before turning to the substance of the admissions made by each accused I think a comment is necessary on the way in which they were recorded.

Although proceedings at the trial were translated into Motu for the benefit of the accused, it would appear that each of them is reasonably proficient in the Pidgin language.

The interviews were conducted in Pidgin and there has been no suggestion that this resulted in any disadvantage to any accused nor that the English translations were significantly incorrect. The two police officers who conducted the interviews are no doubt highly proficient in Pidgin but the records of the interviews show they do not attach the same standard in English. It would have been better for all concerned if the record had been made of the Pidgin used and for this to be tendered together with the police officers’ translation into English. The records as now presented are not records of what the accused in fact said but the officers’ version in English of it. If a record of the original Pidgin and the officers’ translation into English were both available the possibilities of error are reduced. For this reason I have approached with caution any statement by an accused which is inculpatory.

[His Honour dealt with the case against the first and the third accused and continued:]

I conclude that this accused (John Toita Atuai) was a party to a scheme, at the least, to “hit” the deceased, a scheme which when put into effect resulted in the death of the deceased. The problem then is to determine what consequences follow for this accused.

Section 8 of the Criminal Code states:

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

Here, there was a common intention formed by the accused to prosecute in conjunction with one another the unlawful purpose of hitting or assaulting the deceased and in the prosecution of that purpose the deceased was unlawfully killed. Was that killing a probable consequence of the prosecution of that purpose? I have already indicated that Toita should not be regarded as having knowledge, before the time he stabbed the deceased, of the nature of the actual weapons used by the other assailants, but this does not mean that viewed objectively it was unlikely that the other assailants would use weapons. On the contrary, common experience in this country is that the use of weapons in disputes between males of primitive background is by no means exceptional. Here, we have three young men from a primitive area, affected by liquor, who plan to attack with violence a man who comes from another part of the country and who they think has wronged them.

Whether I direct myself in the way suggested by Philp J. in Reg. v. Solomon[v]⁵ or by Burbury C.J. in Murray[vi]⁶ I conclude that the unlawful killing of the deceased was a probable consequence of the prosecution of the unlawful purpose of attacking the deceased with violence. In my view the unlawful killing which this accused is deemed to have committed is manslaughter and not murder or wilful murder. I reject the defence of drunkenness and provocation for the same reasons as those expressed in respect of the accused Gregory.

I find Toita guilty of manslaughter.

Verdicts accordingly.

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

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

R>

[ii]span>Section 8. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

[iii][1961] HCA 22; (1961) 104 C.L.R. 1, at p. 7.

[iv][1967] Qd.R. 237.

[v][1959] Qd.R. 123.

[vi][1962] Tas. S.R. 170.

[vii][1957] HCA 3; (1957) 97 C.L.R. 100, at p. 131.