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Ryan v The State [1979] PGSC 1; SC148 (3 May 1979)

Unreported Supreme Court Decisions

SC148

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
RYAN
V
THE STATE

Waigani

Prentice CJ Raine DCJ Andrew J
26-28 March 1979
3 May 1979

CRIMINAL LAW - appeal from judge’s finding as to credibility witnesses and accused - question of fact.

CRIMINAL LAW - Procedure - desirability judge completing judgment on circuit - calling medical witness before accused - irregularity.

CRIMINAL LAW - evidence - extracts from articles and correspondence medical journals inadmissible.

Cases Referred to

Birch v. The State (Unreported) Judgment SC 146 of 28 March 1979

R. v. Morrison (1911) 6 Cr. App. R. 159

R. v. Joan Smith (1968) 2 All E.R. 115

Ziems v. The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 C.L.R. 279

Banca v. The Queen [1975] HCA 42; (1976) 50 A.L.J.R. 108

Driscoll v. The Queen [1977] HCA 43; (1977) 51 A.L.J.R. 731

Regina v. Joseph Haiai Sarufa (1974) P.N.G.L.R. 173

The State v. Gaius Helex Malaia (Unreported Judgment N158, Raine Deputy Chief Justice, 22 July 1978

Unsted v. Unsted [1947] NSWStRp 44; (1947) 47 S.R. (N.S.W) 495

Kristeff v. The Queen (1967-68) P. & N.G.L.R. 415

Hodge v. Williams [1947] NSWStRp 41; (1947) 47 S.R. (N.S.W.) 489

Edwards v. Noble (1971) 45 A.L.J.R. 682

Order

The appeal be dismissed and the conviction and sentence confirmed.

PRENTICE CJ: This appeal is brought against a conviction for manslaughter. Twelve grounds of appeal are laid relating principally to the judge’s findings as to credibility and as to facts. It is submitted that the evidence did not justify the findings that the appellant had stomped on the deceased (the action which the prosecution relied on to establish causation of death), that the deceased died from cardiac tamponade, that other possible causes of death had been excluded, and that all reasonable hypotheses as to death consistent with innocence of the appellant had been excluded. A ground relating to refusal to allow the recall of a witness was not pursued with any vigour. Leave was also sought to appeal against sentence on the ground of severity; but this was not proceeded with.

The deceased a Trobriands young woman, had formed a liaison with the appellant an expatriate aged 22, who had lived most of his life in P.N.G. and worked in a transport business at the time of this tragic occurrence. The appellant, deceased, and another expatriate business associate with his national mistress, were sharing a 2 bedroomed flat in Goroka. On the night in question another expatriate young man also appears to have been present. The deceased was found by a Dr. O’Donnell, a private practitioner who had been called by the appellant’s friend, to be lying dead on a mattress clad only in a pair of underpants. He observed no significant marks of injury on her body. This doctor, through some official irregularity or misunderstanding, was subsequently allowed to conduct the post mortem on the deceased’s body. As to the events leading up to the girl’s death, the court was reliant upon the accounts given by passers-by including the members of a police highway patrol, of incidents outside the appellant’s flat (the termination of which was said to have been observed as the appellant’s dragging the girl away from police to the steps of his flat and there stomping on her); upon the evidence of Dr. O’Donnell and a C.I.B. member as to what was seen, and what was heard said, inside the flat after the death, and what the appellant said in sworn evidence in the National Court. The appellant had refused to be interviewed on the night in question, failed to keep an appointment to go to the Police Station the next morning, and when finally interviewed that afternoon refused (as he was entitled of course to do) to give any account of the happenings - saying he had taken legal advice. Unfortunately none of the other three individuals apparently present in the flat that night gave evidence in the National Court.

As a result of the post mortem, Dr. O’Donnell, and Dr. Palmer who was also present thereat, formed the view that death had occurred from cardiac tamponade caused by a tear inflicted to the atrium of the heart. This medical view was supported subsequently by Dr. Aiken the Government Pathologist from Port Moresby - but challenged in the National Court by Dr. Cooke a pathologist who came from a Brisbane hospital appointment to give opinion evidence as to cardiac tamponade and the possibility of its being caused by cardiac massage after death. In his evidence the accused related how he and his friends had attempted cardiac massage on the clinically dead body of the girl as it lay on the mattress on the cement floor.

His Honour the trial judge after a lengthy trial, apparently gave a short judgment the day after the evidence concluded (that was on 15th November). This was done at the insistence of and to meet the travel convenience of counsel. His Honour was immediately rewarded by the announcement of counsel’s intention to lodge an appeal. As he had prefaced he would do, his Honour gave further reasons on 29 December 1978 in which he incorporated the whole of his former short reasons. He had this to say in the forefront of his amplified judgment:

“This matter, a trial of some complexity, took some eight days to conclude the hearing of evidence, the hearing terminating eventually at 6 p.m. on Tuesday 14th November.

The evidence was more complicated than in most cases of homicide in that four medical practitioners were called, two of them specialists in pathology, one being from Australia. At the conclusion of the trial I indicated that as my notes of evidence exceeded 450 pages I had to review them but hoped to be able to give a decision at 1.30 the next day. Mr. Griffin, who appeared for the accused, pressed me to attempt to give a decision at an earlier time. Because he is counsel from Australia, and obviously over a protracted trial was incurring the accused considerable legal expense and because he could catch an aircraft out of Goroka at 2 p.m., I demurred, and said I would attempt to give a decision by 11 a.m. the next day. I failed in this somewhat optimistic hope and did not deliver my judgment until 11.35, and in doing so, of necessity, did not go into the detail of my reasons to the extent I would have wished. I had warned counsel that I may only be able to give brief reasons and may have to amplify them later, and to this they agreed. On reflection, I believe this was wrong. In a criminal trial, where a Judge is both judge and jury, I believe it is important that the Judge’s decision, and the reasons he gives for it, reflect a detailed consideration of all facets of the case he has tried. To give brief reasons and to amplify them later is in my view undesirable. One reason is obvious. In the present case at the conclusion of the trial, Mr. Griffin indicated that his client wished to appeal. That of course is his right, but no Judge should place himself in a position where his amplified reasons may possibly be susceptible to the suggestion that they were worded as they were with an appeal in mind. The second reason is this, that a suggestion could be made that the amplified reasons do not accord with the brief reasons given at the time of the decision. I do not think Mr. Griffin was suggesting I may vary the reasons I gave in this case, but he specifically asked me to furnish him with, as well as the amplified reasons, a copy of the reasons I gave at Goroka in my original judgment.

In view of my foregoing remarks I now indicate that I will not demur “(presumably this should read “agree”) “to requests for an urgent decision in criminal matters again, whether for the convenience of counsel or for any other reason. Further, I say now that I intend amplifying my original reasons to the absolute minimum but before I do so, in view of what I have said above I now set out verbatim exactly what I said at Goroka on 15th November”.

I wish to say that I agree entirely with these remarks, and wish to add no more on this subject which was touched upon in Birch v. The State SC148.html#_edn5" title="">[v]¹, than to say it is possible that some of the arguments advanced on this appeal might not have been open if his Honour had not been pressed into a course in which he was unable to express his reasoning in terms and at the length that he might have considered desirable.

CREDIBILITY OF WITNESSES AND OF ACCUSED

Several of the grounds of appeal, and consequently many of the submissions made to this court challenge the trial judge’s right to conclude on the one hand that Constables Atu and Gerari were credible witnesses, and that their evidence as to certain observations and conversations should be accepted, and on the other that the accused’s account of the night’s happenings in certain respects was entirely lacking in credibility.

The manner in which an appellate court ought to approach the problem presented by submissions of this kind has been canvassed in a number of judgments of this court since Independence and in many judgments of the pre-Independence Full Court of the Supreme Court. The principles are well established; and I do not think it necessary to set them out again.

Mr. Griffin has mounted a forceful argument based on inconsistencies which appear in the evidence of the indigenous witnesses. That apparent inconsistencies develop between evidence given on an earlier occasion and that advanced on a later; that apparent inconsistencies develop again in the course of a lengthy cross examination by a skilled lawyer of a national citizen who if he is a non-commissioned policeman witness, has at best an imperfect understanding of the English constructions required in both question and answer; is by no means uncommon in the conduct of trials in Papua New Guinea. It has been submitted that this court must take the same attitude to such inconsistencies, as a court in Australia from which counsel comes, should do. I am unable to agree. Discrepancies must be examined carefully and weighed; but they must be viewed in the light of the experience P.N.G. judges gain of the understanding and use of the English language and of the interpretation from and into it which nationals have in varying degrees, the attitude of nationals to prolonged questioning, and sometimes of deference to expatriate lawyers known by them to be skilled, and other factors of custom which affect their ability to retain and recapitulate not only a version of what they regard as having happened - but also of what they are recorded as having said about it on previous occasions. That less emphasis should be placed here on such discrepancies in peripheral matters is probably reflected in the ready agreement of all parties in a current Law Reform submission, that for example, committal proceedings may desirably be done away with. Judges here must learn, and I am confident do learn, to evaluate in a way appropriate to the customs of the country, the content of evidence given by nationals of widely differing standard of education and experience, and the demeanour and deportment of witnesses in their attestation.

In this trial to a degree greater than many others, his Honour must have been in a far better position to evaluate the honesty and accuracy of the witnesses and to evaluate the credibility of their evidence than would the members of an appeal court. Not only did he have what must have been the inestimable advantage of seeing the locus of the alleged “stomping” both by day and night (we have only photographs), but he was able to watch the demonstration given by Constable Atu of what he said he saw the accused do to the recumbent body of the deceased when she lay as witnessess said, at the foot of the external staircase to the appellant’s flat. And this witness he saw recalled to give a further demonstration of the alleged stomping movement - this time with his attention specifically drawn to the force with which the movement was carried out - in order that a doctor might give opinion evidence as to the possibility of its causing internal injury. I pause to say that it is not at all uncommon for Melanesian witnesses when asked to demonstrate an incident, to do so in slow motion as it were and to illustrate its forcefulness only when asked further questions designed to elicit specifically the degree of force used. Only his Honour was in a position to see and be impressed by whether evidence was given with a show of reluctance, with hesitation, or with an air of exaggeration or over-emphasis indicating prejudice.

As well as making verbal submissions, Mr. Griffin handed up written submissions, over 3 pages of which carefully collate details of evidence said to discredit Const. Atu - he having conceded that if Atu’s evidence were regarded as creditworthy it would support the conviction. These submissions underlined difficulties of observation, differences in the accounts of movements and details of assaults, and difficulty about time. That there are different versions of the events outside the flat are obviously explicable in terms of the different viewing points of the various witnesses in relation to the police vehicle, and their degree of involvement personally, the darkness of the night, the irrational movements of the deceased, and the degree of distraction caused by the injuries apparently inflicted by the deceased on the policemen.

But the judge directed his mind to these matters, and adverts even in his hurried judgment, to the fact that Atu knew none of the persons involved in the drama, to the unlikelihood of Atu’s reporting that his arm had been bitten if it did not occur (one of the factors not spoken of by others and thus sought to be used to discredit him), to the criticism of Atu as unreliable, to the criticism of him as inconsistent, to the differences between his evidence at the trial and that on committal, to the fact that the views of the locus did not discredit Atu’s ability to have seen - as was suggested (and he would not in any event have been able in law to substitute his own opinion for Atu’s), to the consistency shown between Atu’s evidence and his statement made at 8 am next morning (tendered by the Defence), and to the fashion of stomping demonstrated to him. His Honour does not appear to have over-looked any matter or submission to which he was required to give weight. It is noteworthy that on a number of particulars when Atu could have exaggerated if he were so minded (accused approached the girl “in a normal way” - his kick was “not hard”) he did not do so. For myself, I would not, after hearing and reading the detailed submissions, and again studying the transcript, be prepared to say that his Honour was not entitled to accept Atu’s version of events including the stomping as creditworthy.

The deceased’s dress was not viewed by the police. Accused said it was removed from her because it was wet. That it was indeed wet would seem to be the only reason why it would have been taken off her body. And that it was wet would seem to be consistent on any reasonable hypothesis only with her having been recumbent on the wet cement at the foot of the stairs at a place, as the judge observed, where according to the accused she did not fall.

A further basis on which Atu’s account of the stomping was attacked as supporting the cardiac injuries observed, was the physical difficulty of carrying out the movement described, and the agreement of Const. Atu that such was the visibility that he could not see the actual contact of the appellant’s foot with the deceased’s chest. One can only say that the movements demonstrated by Atu would appear to make no sense whatever if one is to imagine the accused pretending to stamp on the deceased, and stopping the observed movement just short of her body. In at least six places in his evidence Atu speaks of the accused’s “stepping” on the girl; these including his short version written out the morning after the tragedy. There again, views would assist the judge to appreciate the evidence; and I am unable to hold that I would disagree with his Honour’s acceptance of the possibility of, and the fact of, the stomping on the deceased’s body.

CAUSE OF DEATH - CARDIAC TAMPONADE? OTHER HYPOTHESES?

The principal effort of the submissions on behalf of the appellant was directed towards showing that hypotheses other than as to cardiac tamponade were reasonably open as to cause of death; and that such internal injuries as were observed post mortem were consistent with cardiac massage said to have been performed on the clinically dead body of the woman. It was suggested alternatively that all injuries could have been received in a fall down the stairs, that death could have been due to vaso-vagal shock, overdose of drugs, or mesenteric injury, and that a minor atrial tear sustained in a fall had been increased in size by cardiac massage.

Now the only suggestion that the deceased had fallen down the flight of stairs thus possibly injuring herself, came from the accused in his evidence at the trial. The accused in his evidence made no suggestion that he had mentioned a fall to the doctor. It is clear to my mind, that indeed neither he nor anyone else made such a suggestion. On the version he gave, it could not be said that he himself in any way caused such a fall. That such an incident should not have been mentioned either to Dr. O’Donnell by the accused or by one of his friends immediately after the woman’s death and the doctor’s arrival, must have told considerably when the question of the accused’s credibility was being weighed. That it was not recounted to Const. Gerari the investigating C.I.B. man, when he arrived a little later, and that the accused said to Dr. O’Donnell “I killed her”, must have been other cogent features in the forefront of his Honour’s mind. The wetness of the girl’s dress with the inference that it had become wet when she lay on the concrete at the foot of the steps (a place subject to leakages from a laundry and usually wet), was another. In addition, his Honour had the benefit of observing the accused give his evidence. He noted the alterations as that evidence progressed, and stated that they were in the forefront of his mind as a reason for coming to the conclusion that the accused was prevaricating in recounting the fall. It seems to me that all these factors entitled the judge to come to the conclusion as he did that such a fall never in fact occurred.

If the accused were innocent of stomping on the deceased, then he would appear to have been badly advised indeed in not making statements - particularly if events had occurred as he subsequently related them. But legal advice was not taken apparently till the morning. That no specific mention was made to the doctor or to the C.I.B. Constable, of cardiac massage having been attempted after clinical death, must I consider tell heavily against the possibility that it had taken place. While a person who had himself been engaged in a violent scene with the deceased may be reluctant to tell about it or explain it; surely it would have been the most natural thing in the world and to be expected, that the 2 others present, one of whom was said by the accused to have assisted in an attempt at resuscitation, would have immediately volunteered to the doctor what had happened - particularly in answer to his question “what have you been doing here?”, to which no one replied (though the accused to a later question “how did it happen?” replied “It doesn’t matter how she was killed, I killed her”). These matters must have been present in his Honour’s reasoning process. He had the benefit of the evidence of the four doctors and the opportunity to assess their respective experience. He had found cause to disbelieve the accused in regard to his evidence as to a fall down the stairs.

There is another matter which his Honour does not mention in his judgment, but which the State Prosecutor, Mr. Egan relied heavily upon both at the trial and on the appeal, as establishing that death originated from cardiac tamponade caused by the appellant’s stomping on the girl’s chest as detailed by Const. Atu. And this was the matter of venous pooling in the body of the deceased.

Dr. O’Donnell was, he said, awakened at about 11.30 on the night in question. He examined the then dead body of the girl at approximately 11.35; and found that though the body was warm venous pooling was to be noted in that part of it closest to the bed. As he explained, the blood in the veins no longer being propelled settles into small veins by gravity, giving an appearance similar to bruising. Dr. Aiken a very experienced pathologist who has done roughly 300 post mortems in Papua New Guinea and another 200 before that, stated that venous pooling does not occur immediately, it takes some time, approximately half an hour. Venous pooling observed at 11.35 in his opinion indicated to Dr. Aiken death at between 11.05 and 10.35. Dr. Palmer’s experience is that it does not occur much under an hour.

Assuming as the appellant stated, cardiac massage had been applied very shortly after cessation of breathing and pulse, with any degree of effectiveness, venous pooling would not it seems have been expected by 11.35, as the effect of such massage is to keep the blood moving in the veins. The pooling would be consistent with death shortly after the stomping observed by Const. Atu stated as approximately 10.45. The times are insufficiently precise in my opinion to allow positive conclusions that cardiac massage did not occur; but in the setting of the other evidence the existence of pooling is not without significance.

Dr. Palmer’s opinion was that if an atrial tear such as was found on post mortem were inflicted during life, death would occur in 3 minutes. Dr. Cooke did not dissent from this. The trial judge appears to have been of the opinion that the deceased was in a dying condition when helped up the stairs (he having found that Atu’s evidence as to a stomping should be accepted) and died shortly thereafter. He clearly accepted the facts as he found them as to the woman’s activities prior to death, and the medical evidence, as excluding death from either alcohol or vaso-vagal shock. And likewise he excluded death from an overdose of drugs (as to the possibility of which no mention had been made to Dr. O’Donnell, and no search made in the premises) as not a reasonable hypothesis in the circumstances of the matter. In my opinion the state of the evidence was such as to entitle his Honour to come to these conclusions excluding other possible causes advanced by the Defence and to conclude that it had been established beyond reasonable doubt that the internal injuries including the atrial tear were caused prior to death when the deceased was stamped upon, and were the cause of death.

In my opinion it has not been shown that his Honour erred in his application of the law, or in his findings of fact, and it has not been shown that his verdict was unsafe or unsatisfactory. I feel that I should add however that two features of the trial were in my view irregular, with respect, and should in no way be regarded as a precedent. As a matter again of “convenience”, Dr. Cooke called for the defence, was allowed to give evidence before the accused himself did so. It is clear that such a course, particularly in a case such as this where the defence was to be based on suggestions in that medical evidence which would rely on possible facts as to which the accused had never spoken, is highly undesirable for obvious reasons. It is, as I understand it, contrary to well-established rules of procedure and ought not to have been allowed here R. v. Morrison SC148.html#_edn6" title="">[vi]², and R. v. Joan Smith SC148.html#_edn7" title="">[vii]^3.

In addition, again as a matter urged as being of “convenience”, copies of extracts from learned medical works and indeed articles and correspondence from medical journals, were admitted as evidence and marked as exhibits. These materials appear to have been put not so much as material which had been used to cross examine witnesses called for the prosecution, but rather to buttress opinions expressed by the defence witness Dr. Cooke. In my experience such material has never been and with respect, ought not to be, before the tribunal in fact. The situation sought to be created here was that important “evidence” for the defence could not be subjected to cross examination, nor indeed in reality made the subject of comment by the other medical witnesses.

I consider the appeal should be refused.

RAINE DCJ: The appellant was charged with the murder of the deceased, Carolyn Benny, who was, it seems, his “de facto” wife. At any rate, they had lived together for quite a time. Clearly their relationship was somewhat turbulent on occasions.

On the night of 7th May, 1978 the appellant returned to their then flat. He had been away from the deceased during the day, and had consumed a deal of beer. However, he had a good meal, and then went to sleep for up to three hours, and when awakened he was relatively sober, he would have been under the influence of liquor in the technical sense, but subsequent events showed that he was active physically, and that he was quite conscious of his surroundings.

He was awakened by the deceased, who hit at him with a slat from the verandah gate. She was, on all accounts, quite hysterical. She obviously bore the appellant a grudge. Probably because she was considerably affected by liquor, she was irritated he had spent the day on his own, and not with her, not that this was his fault.

After much confusion the couple ended up outside after she had thrown stones at the flats building and drawn a crowd of spectators to the scene by her demented behaviour. She behaved in a very wild way indeed, quite outstandingly so.

Ultimately a police patrol car drew up and the critical events of the night commence about this time. The appellant chased her, is alleged to have struck her, they struggled away from the scene, and finally the appellant got Carolyn to the entrance of the two story block of flats. The entrance faced the road. Their flat, which they shared with another couple, was on the top left as one looks at the building from the road. The entrance was a common entrance. One went down a hall, turned left, up three steps to a small landing, and then turned left again, ascending about a dozen steps, until the upper level was reached. On reaching it one was faced with a large, slatted door, and on going through it one turned either right or left. The appellant and the deceased would have needed to turn right to get to their flat.

It is what happened in that entrance hallway, or on the second flight of stairs, or in the flat, that is crucial.

The State case, largely supported by only one witness, Constable Atu, except for circumstantial, medical and other evidence, is that the deceased was observed by Atu to be lying on the concrete below the small stairs, steps really, and Atu says the appellant was “stomping” with his leg bent at the knee, bringing it down, presumably on the deceased, if Atu is to be accepted. Mr. Griffin of counsel for the appellant certainly does not accept this, he says it was dark, that Atu had no time to make these observations, and is a pretty worthless witness. He also makes great play of the fact that Atu never saw the appellant’s foot or leg hit the deceased. I take Mr. Griffin’s first point, for it was a dark passageway, and there is a problem “qua” the time factor. But I do not take the second point, for if Atu saw what he swore he did, then it is clear beyond peradventure that the appellant was not doing physical jerks, in his anger he was clearly kicking down on the deceased. It is futile to suggest otherwise.

The accused denies this “stomping”. He says that he managed to get the deceased up to the top level but that at the slatted door she broke away and apparently fell down the flight of stairs, but only to the lower landing. Of course, if that is correct, or if it is not demonstrated beyond reasonable doubt that it is not, then this raises a strong defence indeed, for the deceased died not long thereafter, within the flat, from what, in lay terms, could be described as a ruptured heart. The medical evidence, differing as it does in some respects, supports the proposition that a strong blow to the chest could have caused the rupture, which inevitably led to a quick death, as the tear caused by the rupture was not insignificant. Thus, a nasty fall down this flight of stairs could raise a very reasonable doubt as to the cause of death, or establish it.

Finally, the accused got the deceased back in the flat, she went to the bedroom. The bed was a mattress on the floor. The accused swore, for he went into the box, that he was surprised at her silence thereafter, after what had gone on before. He says that he and his flat mate, Doosey, who lived there with one Jenny Somot, went to the bedroom. Alarmed at what they found, the deceased was unconscious, they tried to resuscitate the girl, the accused says he used cardiac massage, which he had been taught at school. This raises another, and an alternative defence, for cardiac massage, squeezing the non-functioning heart of the clinically dead, or dying, between the sternum and vertebrae, can be fatal in that it can rupture the heart, or break ribs, which can pierce it, thus killing the dying person and making resuscitation of the clinically dead impossible.

The alleged resuscitation failed. A doctor was called. He came, and pronounced the deceased dead. Dr. O’Donnell alleges the appellant said things to him which, at first blush, seem to be in the nature of admissions. Other things were said by the appellant to a police officer which, again at first blush, were also in the nature of admissions. Mr. Griffin submits he has a strong answer to all this. More as to this later.

The above is only a terse summary or opening.

The appellant was committed for trial. Before the National Court he was acquitted of murder, but found guilty of manslaughter, and sentenced to three years’ imprisonment with hard labour.

He has appealed to the Supreme Court and the grounds of the appeal are as follows:

“I The verdict was against the evidence and the weight of the evidence.

II The Trial Judge failed to hold and/or to take into account the fact that the evidence of Constable Atu, on whose evidence the conviction was based, was demonstrated to be lacking in credibility.

III The Trial Judge was not justified on the evidence in holding that the Appellant had stepped or stomped on the deceased.

IV The Trial Judge was not justified on the evidence in holding that the deceased had died from cardiac tamponade.

V The Trial Judge should have held the evidence as to causation to be inadequate, the post mortem examination not having excluded other possible causes of death.

VI The Trial Judge was not justified in holding that it had been proved beyond reasonable doubt that the deceased had died from any unlawful act of the Appellant.

VII The Trial Judge erred in not permitting the Appellant to recall Doctor O’Donnell to give further evidence as to whether it was moonlight on the night the deceased met her death.

VIII The Trial Judge treated words said by the Appellant to Doctor O’Donnell as a comprehensive admission of guilt whereas the said words were not capable or alternatively should not in the circumstances have been treated as a comprehensive admission, and further, if such words were to be treated as inculpatory, the statements that the Appellant made at about the same time to Doctor O’Donnell to the effect that he had only hit the deceased with his hands and that he could not understand how she had come to die, should have been treated as exculpating the Appellant.

IX It was not open to the Trial Judge to find as he did that the Appellant said to Constable Serani the words ... “I was drunk and couldn’t control myself” ... and that these words related to the events earlier in the evening since this interpretation was inconsistent with evidence given by Constable Serani at the committal hearing.

X There were reasonable hypotheses consistent with innocence including that advanced by the accused which were not excluded by the prosecution.

XI The verdict is unsafe and unsatisfactory.

XII The punishment imposed was excessive in all the circumstances of the case.”

The last ground is not pursued.

Before dealing with the main grounds I will deal with Ground VII, which, it seemed to me, was not pressed terribly hard.

The facts upon which it is based are these. The prosecution case had closed. During it Dr. O’Donnell gave evidence, both as to what he saw and he heard in the flat, and also on medical matters. He conducted the post mortem.

On 10th November the learned trial judge ruled there was a case to answer. Mr. Griffin then indicated that he wished to call an expert, one Dr. Cooke, who is a specialist pathologist, before calling the accused. Mr. Egan objected. He pointed out, correctly, that the accused should be called first, as he certainly should have been. Mr. Griffin then opened, and apparently Mr. Egan relented, withdrawing his previous objection because his opponent indicated firmly that the accused would give evidence. Dr. Cooke then gave evidence and the trial resumed at 9.30 a.m. on Saturday 11th November, when the accused went into the box. The trial resumed at 9.10 a.m. on Monday 13th November and at 2.14 p.m., hours later, while the accused was still being cross-examined by Mr. Egan, Mr. Griffin said “I seek to call Dr. O’Donnell to ask him a question which I omitted to ask in cross-examination on the footing that it only became significant on Friday night when the prosecution case was over.” Presumably the significance of Friday night was that a view was held on Friday night at 7.30 p.m. at the subject premises. Mr. Egan objected. The proposed evidence was whether or not it was a moonlit night on 7th May.

From things said by Mr. Egan to the trial judge it is clear that Mr. Griffin wished Dr. O’Donnell to be recalled for cross-examination. I gain support for this from the trial judge’s short extemporary judgment, when His Honour said “It may be that the doctor can be called as a defence witness or it may well be that he could be called in reply.” His Honour rejected Mr. Griffin’s application.

As His Honour said, it was in his discretion. In my opinion the discretion His Honour exercised was above criticism. For a start, the view was on Friday night, the accused did not go into the box until Saturday morning. Although the defence witness Cooke had given purely medical evidence after the prosecution case closed, had Mr. Griffin applied on the resumption of the trial on Saturday the judge might have given defence counsel a better reception, “aliter” had Dr. Cooke been an eyewitness, or something akin thereto, like Dr. O’Donnell.

For what it is worth, I would have done what the learned judge did, and unhesitatingly. I might add that I do not blame Mr. Egan for taking the attitude that he did. His behaviour was in no way the sort of behaviour of a prosecutor that was so strongly criticized in Ziems v. The Prothonotary of the Supreme Court of New South Wales SC148.html#_edn8" title="">[viii]⁴. He was perfectly justified in taking the objection he did.

In my opinion no error at all is shown, it cannot be demonstrated that His Honour exercised his discretion wrongly. Ground VII fails in my opinion.

Grounds I and XI really amount to the same thing, as probably does Ground X, the answer to them coming from an examination of the remaining grounds, namely II, III, IV, V, VI, VIII and IX. Some of these are inter-linked.

I do not propose to go through the remaining grounds of appeal one by one, with the exception of VIII and IX. My reason for this is that if I conclude that there were sufficient grounds for His Honour accepting that Constable Atu saw the accused stamping down in the vicinity of the recumbent body then that really is the end of the matter. If the accused did what Atu says then it is clear beyond peradventure what was the cause of the ruptured heart. All criticism of the doctors is seen to be highly academic, and it is unreal to suggest that there were “other possible causes of death”. See Ground V.

GROUNDS VIII AND IX

I deal with these together because what the accused said to the doctor, if the doctor is accepted, makes it more probable than not that the evidence of Constable Gerari given at the trial is correct, and vice versa. I quite agree with Mr. Griffin that, standing alone, what the accused said to Dr. O’Donnell is not necessarily an admission. The accused’s words were “It doesn’t matter how she was killed, I killed her.” Of course this could be an admission. But it is something a man might say, particularly when, as here, he was in a highly emotional state, where death was caused quite accidentally, for instance, by tripping, or by a collision as he and the deceased collided as they met coming round a corner. A man might conceivably say aloud, or to himself “Good God, I killed her.”

However, looked at alongside Gerari’s evidence, His Honour was entitled to regard it as an admission, as he did.

I now turn to Gerari. Mr. Griffin made the point at the trial, and he made it to us, that there was a world of difference between what Gerari said in the lower court, and what he related to His Honour. At the trial the witness stated that the accused said “I was drunk and I couldn’t control myself. I’ll come to the police station in the morning and give you the information.” This was in answer to Gerari’s question “Would you give me information of how Miss Carolyn Benny died?” Gerari is an English speaker. He conducted the record of interview.

At the lower court the depositions apparently showed that Gerari stated the appellant said “I am drunk and couldn’t control myself. I will come to you tomorrow and give you the information.” At the trial counsel suggested that for “couldn’t control” should be substituted the words “can’t control”. Of course if the word “am” is substituted for “was” and “can’t” for “couldn’t” then there was no admission at all. In cross-examination Mr. Griffin drew Gerari’s attention to this skilfully, and it is apparent that the constable saw the point. But Gerari stuck to his guns. I do not say this critically of Mr. Griffin, he simply had to cross-examine on this matter, he could not give it the go-by. But as we all know, where a witness stands up to cross-examination it often builds him up. I note in conclusion that Doosey was never called by the accused although he was present at the Gerari interview at the flat.

I cannot agree that His Honour was wrong, indeed, I am far from persuaded that he was. In any event, I think this is one of those cases where an appellate court has to be extremely cautious in upsetting a trial judge’s finding of fact.

Whilst dealing with the above witnesses Mr. Griffin also complained, although it is not a ground of appeal, that the record of interview was inadmissible, for, as was the case, he points to the fact that it contained no admission of a relevant fact. He relies on Barca v. The Queen SC148.html#_edn9" title="">[ix]⁵ and Driscoll v. The Queen SC148.html#_edn10" title="">[x]⁶, especially at p. 742.

It surprises me that Mr. Griffin ever objected to the record of interview, which became Exhibit “J”, for it was not inclupatory. I could imagine him making the objection if it was a jury trial. A jury might be prejudiced by a refusal to answer questions, even on legal advice, and even though a suspect is perfectly entitled to take such a stand. In my experience the boot has been on the other foot, with accused persons’ counsel wishing, against objection, to get in exculpatory records of interview. Of course, this one was neither exculpatory nor inculpatory. See, “qua” the attitude taken where the accused has sought to get in a record of interview of the type mentioned, Regina v. Joseph Haiai Sarufa SC148.html#_edn11" title="">[xi]⁷ and The State v. Gaius Helex Malaia SC148.html#_edn12" title="">[xii]⁸.

I incline to the view that the record of interview was not admissible, but this is “obiter” only, for if it was inadmissible no point is taken in the grounds of appeal, and in any event no miscarriage of justice could possibly have arisen. In his judgment His Honour said “On reading that record of interview I am satisfied that the accused’s failure to answer the questions in it was due to his acting on legal advice and I infer nothing against him by such failure.” But even had the learned judge not said this I would have said there was no miscarriage. However, no ground having been raised, the point does not arise.

CONSTABLE ATU

He is the plinth upon which the State’s case rests. Without his evidence there is no case, indeed, there would not even be cause for much suspicion, bearing in mind the wild behaviour of the deceased immediately prior to her death.

Mr. Griffin gave me valuable assistance, and I am sure my brothers would agree, in preparing excellent written submissions. I thank him for this. I really prefer to listen to counsel, rather than take lengthy notes, which I find distracting, but if one does not make a note, and reserves judgment, then one can easily forget some critical submission. The helpful written submissions are in an abbreviated form but are easy to follow, and I set them out “in toto” that is those relating to Atu.

“The conviction depends upon it being found beyond reasonable doubt that the Appellant “stomped” on the deceased’s body, thus inflicting her death.

The trial judge found that such “stomping” did occur: Judgment page 133, lines 25/34; page 133, lines 40/42 (“I believe the evidence of Constable Atu that he saw the accused stomp on the deceased in this fashion”); page 135-136, 1/3 (“I find that I am satisfied beyond reasonable doubt that the accused assaulted the deceased by stomping on her with his foot at the bottom of the stairway”).

The only witness who gave evidence of such “stomping” was Constable Atu. This evidence does not justify a conclusion reached on a beyond reasonable doubt basis that the deceased (accused) “stomped” on the body of the girl, let alone on her chest.

Assuming Atu can be accepted as a credible witness, he did not see the Appellant stomping on the deceased’s body. At most, all he saw was an up and down movement of the Appellant’s leg. He did not see any contact between the foot and the deceased’s body.

See page 16, line 18; “You couldn’t see if his foot touched her body or not could you?” Answer: No. (In the light of this evidence, it was not open to His Honour to find as he did at page 133, line 28 that Atu saw the accused’s feet striking the deceased on the body.) Further, Atu could not see what position the girl was in at the time of the alleged stomping: page 16, lines 8/10. He could not say what part of her body was stepped on, see page 16, lines 11/12: “What part of her body did the accused step on?” Answer: “I couldn’t see what part of her body. I could just see the movement.” The reason he could not see any of these things was that it was too “dull”. At page 17, lines 8/11 he agreed that he was asked at the committal how it was that he was unable to tell what part of the girl’s body the man had stepped on, and he replied: “It was too dull and I didn’t see what position the girl was in.”

It is submitted that evidence that an accused man was seen moving his leg in the region of a person’s body can not possibly justify a conclusion beyond reasonable doubt that he was at that time in fact stomping on her chest with such effect as to bring about her death by means of puncturing her heart.

Constable Atu’s evidence as to the event in the passageway should not have been accepted as credible evidence in any event, for the following reasons:

A. Atu’s evidence is highly inconsistent in material respects with that of other witnesses who were at the scene. Main examples:

(1) At page 9 (bottom) and page 10 (top), Atu described a punch by the accused to the girl on the “right side under the ear”, after having “folded his fist”. Then he says the deceased fell to the ground and the Appellant “kicked her on the right side of her ribs”.

None of the other witnesses at the scene, all of whom seem to have followed events with much the same degree of attention as Constable Atu, described either of these two blows. Morasai Metekao said the Appellant slapped the girl across the face once, page 3, lines 33/4 and once only, page 5, line 9. This was with an open hand, page 5, line 45. Phillip Niniuru heard the noise of a slap, page 6, lines 34/8. He had watched everything from the time of his arrival at the scene, page 8, line 37. The Appellant did nothing else to the girl by way of hitting, kicking, etc., page 8, lines 38/44, and he was in a position to see if that had occurred, ibid. Atu said there was no slap, page 14, line 39. Sgt. Nigi Kifa saw Appellant hit the girl when she was facing towards him, page 52, line 43. He could not see whether with open or closed hand, page 52, line 26. But cf Atu who said at page 14, lines 26/31, that when Appellant punched the girl, she was in the course of running away from him, and had her back to him. Constable Abonak said nothing of either a punch or a kick (or, indeed a slap), but was in a position to see if violence of this kind had been applied by the Appellant.

Note also that the slap described by Metekao and Nimiuru occurred after deceased had fallen to ground, page 4, lines 36/44; page 5, lines 5/10; page 6, lines 34/37. The blow deposed to by Sgt. Nigi Kifa occurred after the girl had fallen to the ground - see bottom page 51 and top page 52. Cf. Atu at bottom page 9 commencing line 36, through to page 10 line 3, where Atu deposes to a blow by Appellant which brings deceased to the ground.

Such discrepancies not only show Atu’s evidence is not to be trusted, but show also that his account is exaggerated. This exaggeration continues, it is submitted, when he (and he alone) gives evidence of seeing the Appellant “stomp” on the girl. (It is submitted that His Honour was not at liberty to dismiss such discrepancies as he did at page 132, lines 43/45, where he said “There is confusion as to whether the accused slapped the deceased at this point or punched her, but strike her he did.” There is only “confusion” in the evidence if Atu’s evidence is brought into account. Otherwise the evidence is completely consistent. Yet Atu’s evidence is the evidence upon which the whole case depends. Further, it is not really fair to Appellant to resolve the “confusion” as to whether he slapped her or punched her by concluding that he did “strike” her. The essential difference between Atu on this point on the one hand, and the other witnesses on the other, is that Atu’s evidence is of a malicious attack, whereas the other witnesses are speaking of non-malicious chastisement directed to (or at least consistent with being directed to) bringing the girl to her senses. To say that the accused struck the deceased on the basis of such evidence is to understate the position if Atu’s evidence is accepted, and to over-state it if it is not accepted).

N.B. One would expect bruising if the malicious blows described by Atu had occurred.

(2) Atu’s evidence as to how long the police car waited after the Appellant started taking deceased to the entrance of the flats is quite inconsistent with the evidence of Metekao and Nimiuru on this point. On Atu’s account, he was watching what was going on in the passageway for at least five minutes. See page 10, lines 32/3: “After five minutes or so the girl was groaning. I had a watch at the time. I did look at it. The accused was still stepping on the girl when we left.” Both Metekao and Nimiuru said on the other hand, that the police car passed them shortly after they had commenced to walk up the road. See page 5, lines 26/36; page 7, lines 29/42. Yet the accused and the girl evidently were not even in the passageway at this time. According to Metekao, they were still “standing out in front of the flats” (page 5, line 26), and according to Nimiuru, he “walked off while the man and woman were walking towards the flats” (page 20, line 36).

(3) The very fact that Atu could see into the passageway at all is inconsistent with the evidence of both Doctor O’Donnell and Constable Gerari. O’Donnell page 27, lines 20/23; page 29, lines 6/7. Gerari page 59, lines 25/6. Further, if as Atu claims he could not see things such as how the girl was lying because it was too “dull”, how could he see the leg movement?

(4) None of the other witnesses gave evidence of either seeing or hearing anything unusual in the passageway at all.

(5) No other witness saw the girl bite Atu on the arm.

(6) Considerable inconsistencies between the evidence of Atu and that of Abonak.

B. Much of Atu’s evidence is inherently improbable. Examples:

(i) Page 11 “After I saw the accused man stepping on the girl I did not say anything to the other two policemen, nor did they say anything to me”.

(ii) Page 14 The spectators were standing a yard away from the police car (lines 8/9) yet, when she ran around the back of the police car, the deceased did not run very close to them (lines 6/7).

(iii) Page 14, lines 14-26, Improbable account is given here as to the circumstances in which the girl, the Appellant, and the two constables, got around to the driver’s side of the police car.

(iv) Page 15 lines 4-10. At the time when Appellant allegedly kicked the girl above the waist on her right hand side, girl was allegedly lying on her right side, facing away from Appellant.

(v) It took the police car 10 (sometimes he described it as 15) minutes to drive around the block, page 12, lines 4ff.

C. Significant parts of Atu’s evidence differed from evidence he gave at the committal proceedings: Examples:

(i) Page 13, top, as to whether the girl had been yelling and/or shouting;

(ii) Page 13, middle, as to whether the Appellant had touched the girl before she ran around the car;

(iii) Page 14, lines 40-44, as to where the ‘punch’ landed;

(iv) Page 16, lines 29-31, as to where accused’s hands were while he was “stomping” on girl;

(v) Page 17, lines 13-26, as to whether the driver had got out of the police car.

D. Significant parts of Atu’s evidence are mutually inconsistent. Examples:

(i) As to how many times he saw the accused “stomp” on the girl;

At page 16, commencing line 34, he says he first saw the stepping motion once.

Q How many times did you see that stepping motion take place?

A Once.

Q So on one occasion you saw him raise his leg and step down with it?

A Yes.

Two questions later he says he can’t tell how many times the stepping motion occurred.

Q Could it have been twice, five or twenty?

A I can’t tell.

Q How do you know he did it more than once?

A I saw the movement of his leg.

Q But you can’t give the Court any assistance on how many times you saw that movement?

A No.

Cf Page 10 line 34 “The accused was still stepping on the girl when we left.”

(ii) On the two different occasions he was asked to demonstrate the stepping motion in Court, Atu demonstrated quite different degrees of force, significantly more forceful on the second occasion. This was picked up by Dr. Aiken at bottom of page 33 and the top of page 34, to such an extent that Dr. Aiken thought that the force demonstrated on the first occasion would not suffice to rupture the heart (“From that degree of force one would expect virtually no degree of injury to result” - page 34, lines 4-5). The result is that it could not be found beyond reasonable doubt that the accused “stomped” with enough force to do the injuries found on post-mortem.

(iii) There is considerable inconsistency as to the ease with which Atu was able to see things in the passage. See above plus the following:

Page 11, lines 8-9 “I had no problems seeing these things I have told the Court I saw that night”.

Page 15, line 40 - it was dark in the passageway.

If Atu did see anything in the passageway (which, it is submitted, is highly dubious), the circumstances are such that he could well have misinterpreted what he saw, leaving it unsafe to convict on his evidence. This is particularly significant when one takes into account the opinion of the doctors that it is unlikely that the Appellant could have inflicted the injuries from the position described by Atu. Atu’s evidence on its face is far less satisfactory than that of the Appellant, yet the Appellant’s evidence was rejected by His Honour and Atu’s evidence was used as the basis for the finding that the charge had been made out beyond reasonable doubt.” (The underlining is mine.)

I now propose to deal with these arguments.

Firstly, as I indicated earlier, I do not agree at all with the submissions that I have underlined. As I said before, the accused was not doing physical jerks. If he was drawing his leg up and down it is perfectly obvious what he was doing, namely, assaulting Carolyn. His Honour either says or implies that the evidence satisfied him that Atu saw the accused actually stamp on the deceased. The learned judge is wrong if he really meant to take it thus far. But in my opinion it matters not. The judge was completely satisfied that there was this up and down leg movement. This is enough for me. I believe that Atu, understandably, if he did see the up and down movements, assumed that the accused’s foot was landing on the deceased’s body, and that in his evidence-in-chief this caused him to leave the strong impression, unconsciously, that he actually saw the kicks land. I have no doubt that His Honour fell into the same error also quite unconsciously.

I now turn to the other submissions. I see the basis for them. Some are more important than others.

Most, if not all, of these points were made in an able and careful cross-examination by Mr. Griffin. I assume they were made by counsel in his final address, but they could not have been lost on His Honour. But the latter accepted this critical witness, acknowledging the criticism levelled at Atu on account of inconsistency and otherwise. Like Gerari, Atu was an English speaker, which made it easier for His Honour to assess him than would have been the case, however good His Honour’s pidgin is, had he heard Atu give evidence in that language.

In the very nature of things, a witness under attack, or pressure, is looked at most closely by a judge, the judge is alerted. Such, no doubt, was the case here.

Had defence counsel been fairly inept, or, if not inept, inexperienced, had the reasons given by His Honour been skimpy, had the trial judge made rather poor notes, then I might have had some misgivings. But what is the position? Counsel was far from inept or inexperienced. Mr. Griffin has appeared before me for many years, in all jurisdictions. He is able, and more than capable of handling a trial such as this one. His Honour did not give skimpy reasons, although he did express himself as unhappy at deferring to Mr. Griffin’s request that he give judgment fairly quickly, in the interests of costs. I would wish to say something about this, and I am most grateful to the learned trial judge for bringing the matter up. At the commencement of his judgment, His Honour said:

“This matter, a trial of some complexity, took some eight days to conclude the hearing of evidence, the hearing terminating eventually at 6 p.m. on Tuesday 14th November.

In view of my foregoing remarks I now indicate that I will not (defer) to requests for an urgent decision in criminal matters again, whether for the convenience of counsel or for any other reason. Further, I say now that I intend amplifying my original reasons to the absolute minimum but before I do so, in view of what I have said above I now set out verbatim exactly what I said at Goroka on 15th November.” (The underlining is mine.)

With respect, I entirely agree with what His Honour said in the words I have underlined. The Chief Justice had much the same to say in Birch v. The State (supra)SC148.html#_edn13" title="">[xiii]⁹. It will be seen that Pritchard, J. said what he did quite independently, for his judgment was delivered at the end of last year, Birch’s judgment this year.

In my opinion “ex post facto” judgments written after conviction, are impermissible, except in the most special circumstances. For instance, a judge might have to leave a circuit town quickly because of weather, otherwise his circuit plans might be ruined. Or the judge might become ill, or have a family problem. But even then, in my opinion, it is the judge’s duty to write a reasoned judgment within days after the case. How can one remember the faces of witnesses, how can one discuss their demeanour, a month, or months after they have gone into the box? Speaking for myself I will not, in future, regard “ex post facto” judgments in criminal matters on circuit, where they are appealed, in the same way as judgments delivered, as they should be, during the circuit. Judgments given long after conviction, if considered by me, sitting on the Supreme Court, will be treated by me as judgments that are open to wider criticism on the factual issues than is usually allowed. I will be much less inhibited by the fact that the trial judge felt the climate of the trial and saw the witnesses.

Having said that, I repeat that His Honour gave quite full reasons, dissatisfied though he was at the time within which he had to do so.

Finally, the trial judge’s notes were unexceptionable, if I might say so, notwithstanding that they were in manuscript.

I acknowledge the defects in Atu’s evidence, but I am not prepared to say that my opinion of that evidence causes me to differ from the view held by the trial judge. It really comes down to saying that Atu is a liar, if one goes along with Mr. Griffin. Indeed, more than a liar, a fabricator.

Policemen sometimes are, like everybody else. A dishonest policeman who has “planted” evidence will obviously lie to protect himself. A brutal policeman who has wrongly extracted a confession, will rarely or never admit his wrongdoing. To obtain a conviction some police will gild the lily. But this case does not fall into these or other categories. Further to this, Exhibit “F” was tendered. It is a statement by Atu purporting to be made on 9th May 1978. It was an internal departmental Police statement for inclusion in the prosecution brief. It was put in by Mr. Griffin, although marked as a prosecution exhibit. With great respect to counsel, the advantages he gained, or sought to gain, were well outweighed by the disadvantages he now has to put up with. The prosecution could not have got it in. It was not a case where Mr. Egan could have, even remotely, suggested that Mr. Griffin was, by the line of his cross-examination, suggesting recent concoction or invention.

Finally, in his address, Mr. Griffin slipped in, as it were, rather like his complaint about the admission of the record of interview, something that is not mentioned at all in the grounds of appeal. He says that the judgment shows that His Honour misused the view that was held at night of the scene.

The law on views, as far as relevant to this case, is set out clearly in Unsted v. Unsted SC148.html#_edn14" title="">[xiv]¹⁰, Kristeff v. The Queen SC148.html#_edn15" title="">[xv]¹¹ (High Court) and Hodge v. Williams SC148.html#_edn16" title="">[xvi]¹². See also Scott v. Numurkah Corporation SC148.html#_edn17" title="">[xvii]¹³.

The effect of those cases is, so far as this appeal is concerned, that if on a view the judge sees something that he regards as important that he should unburden himself, and give the parties a chance, if his observations are unfavourable to one or the other party, to correct what might have been a misapprehension on his part. Probably Unsted v. Unsted (supra)SC148.html#_edn18" title="">[xviii]¹⁴ is the most striking illustration of the misuse of a view by a judge. It deserves close attention.

In his judgment the trial judge said “and despite evidence that it was virtually impossible to see inside this entry passage, having had a view I am not prepared to say this was impossible, but that Atu could, if I believe him, have seen the silhouette of the accused standing over the body of the deceased as he describes.”

At page 82 of the Appeal Book His Honour noted that a view was held of the premises at 7.30 p.m. on the night of Friday 10th November 1978. Nothing appears other than that.

With great respect, I suggest that in either simple or demonstrative views it is wise for the judge to note with great care all that he observed, or thought he observed, and read this aloud in court, recording any agreement, dissent, or suggested amendment that might come from the bar table.

My own feeling is that His Honour was at fault, but not to the serious extent that Bonney, J. was in Unsted v. Unsted (supra)SC148.html#_edn19" title="">[xix]¹⁵. But no ground of appeal appears “qua” the view, it is really only used by Mr. Griffin as a makeweight, although I acknowledge that it does shore up his general arguments to some extent. But, in my view, not enough.

In my opinion the conviction should not be set aside because of the obvious weaknesses in Constable Atu’s evidence. As a judge on appeal I am not prepared to take the long step required to upset the findings of fact made by a trial judge. I did so recently, as did the Chief Justice, in Birch v. The State (supra)SC148.html#_edn20" title="">[xx]¹⁶, Kearney, J. disagreed with us. But there, without being critical of that trial judge, I came down very hard one way. The fact that Kearney, J. dissented demonstrates that in so many cases like this it is a matter of opinion, which makes it clear how great one’s responsibility is and how careful one must be.

ONUS OF PROOF

Mr. Griffin urged us to accept that the trial judge, actually, or in effect, had reversed the onus of proof. The way he put this, as I understand him, was that having heard the accused give evidence, and disbelieved him, that he transferred his disbelief, as it were, to the prosecution case, thus strengthening it, or making it out.

I am not persuaded that His Honour did this at all. A meticulous examination of the judgment by one who wants to believe this will produce slight evidence that this is what His Honour did. But, firstly, no judge could accept that his disbelief of an accused’ evidence meant that he should be convicted. Secondly, His Honour was prevailed upon, at 6 p.m., to give a judgment very quickly, and this was done, at 11.35 a.m. next morning. His Honour can be excused for giving a wrong impression.

The learned trial judge would know very well indeed that even if an accused person is shown to be a liar, on electing to give evidence, that that is far from being the end of the matter. His Honour would know that there are really three situations. The first is that the jury (a judge here) might decide that the prosecution evidence contains all the truth of the matter, is reasonable, and should be accepted. Conviction then follows. Secondly, the jury might feel, on whatever balance of probabilities you like, that the accused’s version is the one to be preferred. An acquittal would follow. It is trite to say that an accused person bears no such onus of proof. But if he can shoulder the burden, then so much the better for him. But the third situation is the critical one. The jury might not like the accused. It might have a hostile feeling towards him. Or it might disbelieve him. But that is not the end of the matter. If, notwithstanding grave misgivings, the jury is left in reasonable doubt as to guilt, then there must be an acquittal. This is put better than I could by Street, C.J. in El Mir and Safi v. Reg.SC148.html#_edn21" title="">[xxi]¹⁷.

A criminal trial is not a conflict between two sides, the stronger side winning.

I cannot conceive and I do not accept that this was lost on the learned trial judge.

While my draft judgment was being typed I read the draft judgment of the Chief Justice, which allows me to omit any examination of Mr. Egan’s strong argument on venous pooling, and, further, of the failure of the accused to tell Dr. O’Donnell and the police of the deceased’s fall down the flight of stairs, assuming there was a fall. The learned trial judge found that there was not. These two vital matters have been dealt with extensively by the Chief Justice and I entirely agree with what has fallen from my brother.

CONCLUSION

In my opinion this appeal must be dismissed and the conviction and sentence confirmed.

ANDREW J: The appellant was convicted on the 15th November, 1978 in the National Court sitting at Goroka of unlawful killing and sentenced to a term of imprisonment of three years. He now appeals against his conviction and although leave to appeal against sentence was applied for, it has not been pursued.

There are twelve grounds of appeal against the findings of the learned Trial Judge based on his findings of fact. They amount in my view, to whether the weight of evidence justified a conviction and whether there were not reasonable hypotheses consistent with innocence. Two matters in particular were pressed. The first was that the evidence of one Constable Atu that the appellant “stomped” on the deceased’s body, thus inflicting her death, was unsatisfactory and should not have been accepted. Secondly, that the medical evidence did not establish beyond reasonable doubt that the deceased had met with her death by means of an unlawful attack.

I consider the test laid down by the High Court in Edwards v. Noble SC148.html#_edn22" title="">[xxii]¹⁸ that an appellate court should not set aside findings of fact by the Trial Judge unless it is satisfied that they are wrong, is applicable to the decision in the present case. This test has been followed in numerous decisions of the Supreme Court and National Court.

The appellant resided at West Goroka with the deceased. Matters that were not in dispute at the trial were that on the evening of the 7th May 1978 the deceased returned to the residence (which was a flat) and an argument developed between them. Persons attracted by the row described a scene of some violence outside the flat during which the appellant struck the deceased at least once. A police vehicle was present, containing Constable Atu.

The police, believing the matter to be a domstic dispute did not interfere. The appellant was seen to drag the deceased back toward the flat. It was then that Constable Atu said he saw the appellant “stomping” on the deceased at the bottom of some steps leading to the flat which was on the first floor of the building. Later a Dr. O’Donnell of Goroka was summoned to the flat by a friend of the appellant. He observed the deceased lying on a mattress with no obvious injuries. She was dead. Dr. O’Donnell spoke to the accused and I shall return to the contents of this conversation and to the medical opinions as to the cause of death.

THE FINDING THAT THE APPELLANT UNLAWFULLY ASSAULTED THE DECEASED

His Honour the Trial Judge made the following findings in his judgment:

“At this stage a crowd had started to gather and eventually a Highway Patrol Police vehicle, driven by Sgt. Nigi accompanied by Constables Atu and Akunak pulled up outside the flat. The accused says he then went downstairs to get the deceased and bring her back to the flat. He remembers seeing one policeman out of the car near the rear of the police vehicle. He tried on three occasions to grab the deceased but each time she broke free. She then ran around the rear of the police vehicle, fell over and in the process grabbed at the legs of Constable Akunak in what has been described as a tackle. The scene was one of some confusion which is understandable in the circumstances and the details of evidence of the police, two onlookers and the accused differ in certain respects. There is confusion as to whether the accused slapped the deceased at this point or punched her, but strike her he did. I don’t intend to go into detail at this point, but I am satisfied that the police and the onlookers were all trying to tell the truth of what happened and the variations in their evidence is due to the confusion of the event itself. The accused managed to pull the deceased away from Const. Akunak who fell onto one knee which started to bleed and which I am satisfied distracted his attention from what followed. She ran away from the accused and as he said grabbed hold of a member of the crowd. This I am satisfied was Const. Atu who gave evidence that at the same time the deceased bit him on the arm. Const. Atu has been criticized as an unreliable witness, but it seems strange to me he would invent this biting of his arm if it did not occur. He knew none of the people present before and the fact that she bit his arm merely demonstrates to me the hysterical state she was in.

Eventually the accused managed to drag the deceased away and pulled her towards the house using both his hands. She was still screaming and resisting him. Doosey at about this stage came downstairs and informed the crowd that the accused and deceased had been married for 5 years, something to the effect that they had had previous arguments, that this was only a domestic dispute and they could all go. The crowd started to disperse and the police got into the car, except for Sgt. Nigi who I am satisfied had remained in the car throughout, as indeed his instructions demand.

Constable Atu who was seated alongside Sgt. Nigi in the passenger’s seat looking at the flats says he saw the accused pull the deceased inside the entrance way and observed them approach the steps leading upstairs. At this point Const. Atu says the deceased slipped and was lying on the concrete floor. He says the accused was standing on the steps and at this point he observed the accused’s leg move up and down on a number of occasions, his foot striking the deceased on the body in what is described as a stomping movement. Although Const. Atu’s evidence as to detail of this observation has been criticized as inconsistent and not in accord with evidence he gave at the Committal, I am satisfied that he did see the movement of the accused’s leg which he describes. I am satisfied the police car did not move off until Atu had seen this incident, and despite evidence that it was virtually impossible to see inside this entry passage, having had a view I am not prepared to say this was impossible, but that Atu could, if I believe him, have seen the silhouette of the accused standing over the body of the deceased as he describes. The accused denies he did this. Having considered his evidence I say now I do not believe him. I believe the evidence of Const. Atu that he saw the accused stomp on the deceased in this fashion.”

His Honour then made further findings including the following:

“The accused’s story is that having broken away from him at the foot of the landing, a story which he changed considerably in cross-examination, he slapped the deceased a number of times to quieten her down, then escorted her up the stairs at which point she broke away from him again and fell all the way down the stairs to the landing above the bottom two steps. I do not intend to go into detail again at this point but I say I do not believe the accused on this matter at all, in fact I am satisfied beyond any doubt that such fall never in fact occurred.”

Counsel for the appellant submits that the conviction depended upon the finding beyond reasonable doubt that the appellant “stomped” on the deceased’s body, thus inflicting her death. I agree with this submission. He also tendered a useful summary of his submission outlining the criticism of Constable Atu’s evidence.

This summary and indeed counsel’s whole conduct of this appeal and of the trial itself was a most competent exercise in advocacy. However, on a consideration of the whole of the evidence I am not persuaded that the findings are wrong. I might not have come to the same conclusion myself but that is not important. In my view one cannot overstate the advantage which the Trial Judge has over that of an appellate court which does not hear and see the witnesses. Constable Atu’s evidence was attacked in that it was inconsistent with evidence from others especially as to whether the police vehicle remained at the scene after the appellant had dragged the deceased back to the flat. It is true that the evidence of time involved is confusing but nevertheless, it is clear that Constable Atu was present outside the flat for some period after the other witnesses had departed. Furthermore, His Honour had before him a statement made by Constable Atu on the morning after these events. This statement was tendered by defence counsel. It contained the following:

“While I with the other constable were about to leave I looked inside the house and saw that man was standing on the ladder of the house and the girl was sitting below him. I did see the movement of the man’s leg and he was using it to step on the girl. The girl was crying aloud for some time and about 5 minutes the girl started groaning in a low voice.”

This statement was consistent with the Constable’s evidence on the trial. I think it was significant that it was made the morning after the 7th May, 1978. Furthermore the Trial Judge visited the scene on two occasions. He thus had a further advantage which this court does not enjoy. He observed the witnesses and assessed their credibility. The plain fact is that he accepted Constable Atu and he did not accept the appellant’s evidence and I am unable to say that those are wrong findings of fact.

There are further matters however, because Constable Atu’s evidence does not stand alone. When Dr. O’Donnell arrived at the scene he observed the deceased and then spoke to the accused. Part of his evidence is as follows:

“I indicated to him that the deceased was dead. I can’t remember the exact words, effectively I said “The patient is dead”. The defendant was extremely upset and tearful, very emotional. I believe at the time he was wearing shorts, I can’t remember if he had a shirt. I think he was barefooted. Initially when I first entered the dwelling I stated “What have you been doing here?” Subsequently I examined the deceased. The defendant was emotional. I said in effect “How did it happen?” My memory is hazy here. The defendant said “It doesn’t matter how she was killed, I killed her”. It was a very emotional scene. I took the conciliatory role of suggesting maybe she died of a ruptured spleen as her external injuries were slight, but I have some recollection of a discussion about a fight, a domestic argument. The defendant did say he had hit her.”

In my opinion this was a most significant piece of evidence especially in view of the fact that the appellant sought to show that the fall down the stairs or the external heart massage may have caused the fatal injuries. It is true that the evidence of a fight and of hitting the deceased could refer to the incident outside the flat but I think that the statement to Dr. O’Donnell must be looked at in its whole context. It was an emotional scene. The appellant said that he had killed her. Surely if the injuries flowed from a fall down the stairs or from cardiac massage there would have been some mention of this rather than a description of a fight. I think it significant that the accused’s friends who were said to be present when the cardiac massage took place were not called to give evidence.

In the light of Dr. O’Donnell’s evidence I think that the story of the fall down the stairs was an ex post facto explanation, as was the cardiac massage. These matters His Honour must have taken into account and to my mind they more than justify his finding in disbelieving the appellant. It was submitted that a disbelief in the credibility of the appellant should not have meant that Constable Atu’s evidence was thereby strengthened. I do not think that the matter was approached in that way. Clearly His Honour looked at the whole of the evidence and taken as a whole the disbelief in the appellant’s evidence was one factor which led to the finding beyond reasonable doubt in his guilt.

On the whole of the evidence I cannot say, from the position of an appeal court, that these findings of fact were not reasonably open.

DID THE MEDICAL EVIDENCE ESTABLISH BEYOND REASONABLE DOUBT THAT THE DECEASED MET HER DEATH BY MEANS OF AN UNLAWFUL ASSAULT

His Honour made the following findings:

“On the evidence I am satisfied beyond reasonable doubt that the deceased died from cardiac tamponade secondary to rupture of the right auricle of the heart and that this injury was inflicted on her by the accused stomping on her body with his foot at the bottom of the stairway as above described.

All other injuries flow on after this. I am not satisfied that cardiac massage was carried out on the deceased. The other injuries may have been caused by the blows from the accused’s foot at the bottom of the stairway or possible from cardiac massage if it was applied by the accused. If this was applied, or even negligently applied, or even if it had been applied by another person, all it did was to aggravate an injury which I find beyond doubt had been inflicted by the accused in the manner I indicate.”

The appellant’s defence was that there were reasonable hypotheses consistent with innocence. Thus as I have already indicated, it was submitted that the deceased’s injuries could have occurred in the fall down the stairs or from cardiac massage. The further possibility of death from an overdose of drugs was suggested. Again I have already indicated that His Honour’s findings in these two matters ware to my mind, reasonably open.

The post mortem revealed an atrial tear. Death from such a tear would occur within 3 minutes and His Honour found that this injury occurred from the “stomping” at the foot of the stairs. There was evidence that the deceased’s dress was wet and that there was water at the bottom of the stairs. There was medical evidence from four doctors and death by a drug over-dose was excluded. The appellant’s story of the fall was not accepted. There was strong medical evidence that death resulted from cardiac tamponade. All these matters were ample reasons for His Honour to reach the conclusion which he did.

I would dismiss the appeal and confirm the conviction and sentence.

Solicitors for the Appellant: Gadens

Counsel: J.A. Griffin, Esq.

Solicitors for the Respondent: K.B. Egan, Public Prosecutor

Counsel: K.B. Egan.

SC148.html#_ednref5" title="">[v]^{Unreported Judgment SC 146 of 28 March 1979.}

SC148.html#_ednref6" title="">[vi]^{(1911) 6 Cr. App. R. 159}

SC148.html#_ednref7" title="">[vii]^{(1968) 2 All E.R. 115}

SC148.html#_ednref8" title="">[viii]^{[1957] HCA 46; 97 C.L.R. 279}

SC148.html#_ednref9" title="">[ix]^{[1975] HCA 42; (1976) 50 A.L.J.R. 108 at p.118}

SC148.html#_ednref10" title="">[x]^{[1977] HCA 43; (1977) 51 A.L.J.R. 731}

SC148.html#_ednref11" title="">[xi]^{(1974) P.N.G.L.R. 173}

SC148.html#_ednref12" title="">[xii]^{(Unreported) Judgment N158 Raine, Deputy C.J. 22 July 1978}

SC148.html#_ednref13" title="">[xiii]^{(Unreported) Judgment SC146 of 28 March 1979}

SC148.html#_ednref14" title="">[xiv]^{[1947] NSWStRp 44; (1947) 47 S.R.(N.S.W.) 495}

SC148.html#_ednref15" title="">[xv]^{(1967-68) P. & N.G.L.R. 415}

SC148.html#_ednref16" title="">[xvi]^{[1947] NSWStRp 41; (1947) 47 S.R. (N.S.W.) 489}

SC148.html#_ednref17" title="">[xvii]^{[1954] HCA 14; 91 C.L.R. 300}

SC148.html#_ednref18" title="">[xviii]^{[1947] NSWStRp 44; (1947) 47 S.R. (N.S.W.) 495}

SC148.html#_ednref19" title="">[xix]^{[1947] NSWStRp 44; (1947) 47 S.R. (N.S.W.) 495}

SC148.html#_ednref20" title="">[xx]^{(Unreported) Judgment SC146 of 28 March 1979}

SC148.html#_ednref21" title="">[xxi]^{(1958) 75 W.N.(N.S.W.) 191}

SC148.html#_ednref22" title="">[xxii]^{(1971) 45 A.L.J.R. 682.}

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