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Regina v Mon and Debong [1963] PGLawRp 297; [1965-66] PNGLR 42 (23 May 1963)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 42 - Regina v Mon and Debong

[1965-66] PNGLR 42

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

MON AND DEBONG

Mount Hagen and Port Moresby

Smithers J

25-26 March 1963

23 May 1963

CRIMINAL LAW - Murder - Identification of body - Proof of death - Whether confession alone sufficient evidence.

On a charge of murdering a person, no part of whose body could be identified, the only evidence to prove the charge consisted of the confession of the accused.

Held:

N1>(1)����� Where the Crown has failed to identify a body as that of the deceased whom the accused are alleged to have murdered, the accused may, nevertheless, be found guilty of murder if confessions made by them are found by the court to be true. This is merely a question of satisfaction beyond reasonable doubt but the court must give full weight to possible hypotheses consistent with the person in question being alive and only after having dismissed them as unreasonable in the circumstances can the court arrive at a state of satisfaction beyond reasonable doubt.

N1>(2)����� Where the evidence of guilt is substantially confessional only but the tribunal is satisfied as to the death of the person alleged to have been killed, the Court must in relation to the criminal conduct of the accused, to which he has confessed, give similar weight to hypotheses more or less reasonably consistent with the confession being untrue.

N1>(3)����� When the court is dealing with native persons whose ways are frequently inscrutable, it is not for the court to reject hypotheses because they are not reasonable as applied to the white man.

N1>(3)����� In the circumstances the evidence did not induce a degree of conviction of the guilt of the accused which excluded reasonable doubt.

Cases Cited:

A.-G. v. Edwards, [1935] I.R. 500; R. v. Horry, [1952] N.Z.L.R. 111; Re v. Onofrejezyk, [1955] 1 Q.B. 338; R. v. Mackay [1935] HCA 70; (1935), 54 C.L.R. 1; R. v. McDermott (1948), 76 C.L.R. 501.

Trial on Indictment.

The facts are sufficiently stated in the judgment.

Counsel:

Bowen, for the Crown.

Rissen, for the accused.

23 May 1963

SMITHERS J:� In this case Mon and Debong are charged with the murder of one Kopom.

For practical purposes the evidence against them falls into two categories:

N2>(a)����� the evidence of the witness Timba of circumstances surrounding the disappearance of Kopom;

N2>(b)����� evidence of a confessional nature.

Timba has said that Kopom was known to him and lived at a place called Kwina, a more or less isolated spot some distance from the dwellings of most of other people of his community. Kopom�s neighbour, Timba, was a �bossboi�. That means that he was a person of some authority in the community, occupying a position more or less next in authority to the luluai. He was a channel of communication from the Administration officers to the members of his community.

Timba said that it was the custom of Kopom to work for the patrol officer on the roads on most Mondays. It seems that on one Monday he was at work and that he did not attend for work thereafter. Timba said that about four weeks after last seeing Kopom at work, he went to Kopom�s house to make some enquiries about him. This would be about 17th or 18th December, 1962.

It seems that just before Timba went looking for Kopom the patrol officer wished to take a census of the local people, and as Timba put it, �Kopom was not there�. Timba says that at Kopom�s house he observed footprints apparently of two men which went from a position near Kopom�s house to a creek some 30 feet away and then back again. He also says that he observed some marks between the lines of footprints and that these marks were such as he would expect to be made by something heavy being drawn along the ground.

Timba says he then searched further and found four bones some 200 yards downstream. These bones were partly in and partly out of the water and were caught on a small grassy patch protruding just above the water. He collected these bones. Four bones, said to be those collected by him, were put in evidence. Timba then went to the home of Mon. Timba showed the bones to Mon and told him he thought they were the bones of Kopom and asked Mon if he knew anything about them. Mon said no. Timba then told Mon that he thought nobody else but Mon had killed Kopom. Mon denied this.

According to Timba he saw Mon again the next morning and again put it to him that he had killed Kopom and on this occasion Mon said, �I killed the man�. Timba said, �Who helped you do the thing?� Mon said �Debong�.

Timba then took Mon to Tabibuga, the nearest police station. At Tabibuga, in the presence of Timba, Mon and Debong were interviewed through an interpreter by Yama, a native policeman. It is not clear how Debong happened to be present.

At this stage Mon and Debong were undoubtedly trembling violently and appeared to be in fear. Timba produced the bones and said to the two men, �Now you two can talk�. Yama then gave a proper warning and Mon then said, �It is true that the both of us killed the man�. Mon said, �We killed him in a half-completed house and we then threw him into a no-good place near a creek�. When asked why he had done it, Mon said he was cross with this man �about� his wife. The whole party then went to the area of Kopom�s house. Timba pointed out where he had found the bones. During this inspection Mon said, �My wife died and I had half an idea Kopom had poisoned her so I killed him�. Later Mon said, �I was not able to kill him on my own so I got Debong to help me�. Debong said, �It is true we did it, both of us�. Mon produced an axe and said that it was the instrument he used to kill Kopom.

The prisoners then went to Mount Hagen, a considerable distance away, apparently by themselves. On 24th December, 1962, they walked into the office of the patrol officer, Mr. Allen, and Mon told Mr. Allen through an interpreter that he had killed a man because he had dug up his dead wife and was eating her. After a warning Mon and Debong made statements which were reduced to writing and admitted in evidence.

Mon said, �My wife died about two months ago and I buried her near Kopom�s house. I buried her about four feet down, covered the grave with large posts and constructed a timber frame around the grave. Next day this man Kopom opened the grave and started to eat my dead wife, Punumi. He ate portions her arm and body. When I discovered this I sent Debong to go and hold Kopom; he did this and I killed him with my axe. That is all.� Debong said, �Mon has told you what happened. I simply held Kopom firmly while Mon killed him by striking him on the neck with his tomahawk. I have nothing more to say.�

Dr. Ivinskis gave evidence that the bones were human bones, that they constituted the right femur, tibia and fibula of some one person, either male or female. The fourth bone was the radial bone of the right arm, probably of the same person. He said the bones were not scratched or marked in any way, that there were small pieces of tendon adhering to the ends of the bones and that they were not �old� bones. He thought that in water or out of water they would not have come from the skeleton to which they belonged in less than three months unless they had been subjected to some physical violence. He thought these bones were those of a person about two months deceased in January, 1963. The death of Mon�s wife appears to have taken place in the latter part of October, 1962. Their appearance was consistent with the flesh having been removed from them by almost any means. There were no scratches or other marks. The doctor said he would not expect marks if the flesh had been removed by teeth, human or animal.

As a result of all the evidence about the bones, the Crown concedes that it is impossible to draw any inference as to the identity of the person of whose body the bones were once a part.

The bossboi, Timba, is a most unusual person. His demeanour and appearance differed greatly from that usually presented by natives of authority. Such persons usually display indications that they are persons of character and reliability. The more one thinks of Timba, the more he presents the characteristics of a mystery man, and a somewhat sinister one at that. Indeed of all the natives I have seen in or out of the witness box during my period in this Territory, this man comes closest to one�s mental picture of a practical sorcerer or medicine man. To my mind his evidence, his actions and his motives are all suspect.

Having failed to link the bones with Kopom, the Crown is without a body or any part of the body of Kopom. Nevertheless, if the confessions of Mon and Debong are to be taken as true, then the death is proved. There is no rule of law which requires any other or more evidence of the death. See A.G. v. Edwards[xvi]¹; R. v. Horry[xvii]²; R.. v. Onofrejczyk[xviii]³; also Professor Norval Morris on The Corpus Delicti 68 L.Q.R. 391, and an article by Mr. Bourke, now Judge Bourke, in vol. 25 A.L.J., p. 589.

It has been suggested that there is a special rule applicable to murder cases to the effect that the court will not act upon a confession uncorroborated in some material particular by other evidence. This suggestion was discussed by Latham C.J. in R. v. Mackay[xix]⁴. That learned judge did not deny or confirm the existence of the rule but the decision as a whole points rather to the conclusion that a confession which carries to the mind the required degree of conviction may be acted upon without more. This also seems to be the result of other authorities.

As Dixon J. (as he then was) said, �It is a mistake to lay down general propositions as to the sufficiency of forms or descriptions of evidence to establish an issue. Cases rarely, if ever, occur in which one description of evidence is isolated from all others. The ultimate standard of proof required by law in a criminal case is sufficiency of legal evidence to satisfy reasonable men to the exclusion of any reasonable doubt. When a confession is relied upon in fulfilment of this requirement, it must almost necessarily happen that the circumstances in which it was made are proved, and these must go far to determine its actual probative force. . . . Probably it will be found in most cases less profitable to inquire whether there are or are not circumstances amounting to `corroboration�, than to examine the considerations, if any, supplying hypotheses by which the making of a confession may be explained more or less reasonably consistently with innocence.� Similarly, circumstantial evidence will support a finding of death in the absence of a corpus delicti, as well as the cause of death, if that evidence is sufficiently cogent.

The problem is merely one of proof to the satisfaction of the judge or jury, as the case may be, beyond reasonable doubt of the fact of death. It is particularly important for the tribunal to keep in mind that the quantity and quality of evidence which may induce satisfaction beyond reasonable doubt in respect of many an issue other than that of death does not necessarily justify such satisfaction in relation to the issue of death. Always the factor of possible error or surprise or the unlikely, even the extremely unlikely, must be taken into account in good measure. Only after giving full weight to possible hypotheses consistent with the person in question being alive, and having dismissed them as unreasonable in the circumstances, can one arrive at a state of satisfaction beyond reasonable doubt. Point is given to this by the incidents in the life of one McDermott. In R. v. McDermott[xx]⁵�the prisoner was convicted of the murder of a man named Lavers whose body was not subsequently discovered, though there were two small blood stains which allegedly constituted sufficient trace of it. Evidence was given that after arrest, McDermott confessed to killing Lavers. McDermott denied this confession. On appeal it was strongly argued that the circumstances of the making of the alleged confession rendered it non-voluntary. The appeal was dismissed by the High Court. Five years later, a Royal Commission reported that there was not sufficient evidence to convict McDermott, and he was set free, it being clear that he had nothing to do with Laver�s death, even if Lavers was dead.

In R. v. Horry[xxi]⁶�circumstantial evidence was held to be sufficient to prove the death provided that �moral certainty� as to the corpus delicti could be established. It has been said by learned authors that moral certainty and the exclusion of reasonable doubt are one, and that the phrase �moral certainty� was suggested purely as a terminological alternative to �beyond reasonable doubt�, and primarily for the purpose of attempting to avoid confusion caused by past attempts to define reasonable doubt. The phrase �moral certainty� as used in R. v. Horry[xxii]⁷�appears to suggest a higher degree of proof than �beyond reasonable doubt�. The phrase has in it however a lurking ambiguity of its own. Its quality as an expression suitable for use by lawyers is to my mind suspect. �Moral� is a word that has to do with ethical quality: �Certainty� is a state of mind, a degree of conviction felt by a person with respect to this or that after the factors which appeal to the mind as relevant have had their effect. If an expression is to be used in conjunction with �certainty� to define the degree of conviction felt about some matter, one would expect an expression using terms of quantity rather than something going to ethical quality. One�s mind may be in a state of complete certainty, or of something less than complete certainty. Certainty may be lessened by reasonable doubt, or only by doubt which is judged by the standard of human affairs to be unreasonable. It is possible with respect to future events to specify the quantity of doubt by the expression of odds. Each time the mind reaches a particular state of conviction as to whether or not for instance some event occurred, then provided the mind has worked honestly the result is a moral state of mind. But that will tell one nothing as to the degree of conviction which exists. Indeed, the most common use of the expression �moral certainty� seems to be with reference to sporting events where all concerned know that the degree of uncertainty is very high and that of morality may be very low.

However, as used in the law with respect to proof of the corpus delicti, the phrase is intended to emphasize the great caution which judges and juries should exercise before they find affirmatively that a human creature is dead where the evidence before them is merely circumstantial or confessional.

In this case there is so little circumstantial evidence that what there is is valueless. The only witness who tells me that Kopom has not been seen is Timba and his evidence is confined to his own locality; there is no evidence of a search or of any inquiries. It does not even appear whether or not Kopom is married, or has children, or parents, or friends, or whether or not inquiries have been made of any of these, or indeed, whether or not Kopom has been at his house on any day since the 18th December last. It is to my mind surprising that evidence of death should be left in this condition. The matters referred to obviously call for inquiry and evidence. Failure to give attention to them necessarily and seriously weakens the Crown case. It should be realized by all concerned that proof of death, when there is no identifiable body, requires evidence excluding all plausible hypotheses which may be consistent with the continuing existence of the person alleged to be dead.

The confessions of the two men therefore constitute the only evidence against them to prove both the death and their participation in it. The confessions therefore fall for consideration in the light of all the requirements of caution referred to above.

On the one hand it is said for the Crown:

N2>(a)����� That confessional evidence is the highest kind of evidence which can be led against an accused person.

N2>(b)����� That in this case there is the fact that not only does one man confess but two men do so together.

N2>(c)����� That I should not be led astray by suggestions that the confessions should be looked at against a background of possible cannibalism or sorcery.

N2>(d)����� That I should not regard Timba as a sinister figure.

N2>(e)����� That I should have regard to the fact that the accused men have failed to give evidence denying the charge.

As to these respectively, the defence submits:

N2>(a)����� To say that a confession is the highest class of evidence is only sound when it is clear that the confession is to be relied upon as a statement of truth. Unless the circumstances of a confession clothe it with authenticity it is but a poor medium of proof.

N2>(b)����� In the circumstances of this case it is not to the point that two men confess. If, as the defence suggests, the confession proceeded from fear of tribal action of some sort it would not be of significance even if more than two men should confess.

N2>(c)����� There are good reasons to suspect that there is a background of cannibalism or sorcery behind the procuring of these confessions.

N2>(d)����� There is ample ground for suspecting that Timba was a sorcerer or blackmailer of some kind or was the agent or tool of a sorcerer or blackmailer or a group of persons interested in explaining why Kopom was �no longer there�. In this country there is nothing remarkable about people confessing through fear of magic or violence to crimes they have not committed.

N2>(e)����� If the confessions were procured by sorcery or blackmail no inference can be drawn against the accused because they have not denied the charge. Even if they went into the witness box and admitted the offence no more reliance could be placed on that than can be placed on the existing confessions. If there is any basis for the suggestion of fear or magic or violence they will doubtless fear the consequences of conviction less than a repudiation of their confessions. In any event, no inference should be drawn against the men because they do not go into the witness box. They are entitled to remain silent.

I think that on these issues the weight is with the defence. It was further submitted that the Crown should not even comment on the failure of the accused to give evidence. See s. 6 Evidence Ordinance 1934 (New Guinea) and s. 58 Evidence and Discovery Ordinance 1913 (Papua).

Certainly a confession carries weight only to the extent that it gains support as an authentic statement from (a) the circumstances in which it was made; (b) its own inherent qualities.

Circumstances which tell against these confessions are:

N2>(i)������ The confessions of Mon were undoubtedly initiated and procured by Timba. To my mind Timba showed an unerring instinct as to the details of the commission of this alleged crime which is explicable on the basis that he was the author of the story rather than that he was an observer discovering facts. Why he should decide that Mon killed Kopom, and persist in his allegations against Mon notwithstanding Mon�s denials is not easy to understand, unless one credits Timba with outside knowledge of the death and a determination to pin it upon Mon.

N2>(ii)����� Not only were the confessions initiated by Timba but he remained with Mon and Debong until they confessed. It was he who said to the two trembling men in the presence of the policeman, �Now you two can talk� or words to that effect. The expression �can� in pidgin in a context like this is closely related to �must�.

N2>(iii)���� Although Timba went so far as to accuse Mon and to press Mon to confess to the killing he displayed no curiosity as to why Mon or Debong had killed Kopom. A bare and bald confession was sufficient for his purposes.

N2>(iv)���� All these features of Timba�s conduct are at least consistent with Timba being an active agent in producing for the patrol officer an explanation of the absence of Kopom. Such initiative would hardly be likely unless Timba and perhaps other people required such an explanation to cover misdeeds of their own.

N2>(v)����� The suggestion of cannibalism arises out of the terms of Mon�s ultimate version of the killing. It arises in a manner which immediately raises questions about the confession. If Mon saw Kopom uncovering his dead wife, why did he not call out to him, or otherwise endeavour to deter him, or at least inquire why Kopom was so acting? If Mon saw Kopom eating his dead wife, why did he not protest to Kopom or try to stop the process, or report the matter to some person in authority? If Mon did not see Kopom eat his wife, how did he �discover� that Kopom was the cannibal who did so? What other person saw the deed? If no person saw it, how was it �discovered� by Mon? This story is of a macabre type which outdoes the best of Alfred Hitchcock, yet these questions do not seem to have been raised for inquiry by the prosecution at any stage and they have certainly not been answered at the trial.

N2>(vi)���� If Mon killed Kopom because he exhumed and ate his wife, why did he not give this explanation to Yama when he first confessed to Yama? To say �I killed Kopom `about my wife� � gives a very different impression from �I killed Kopom for eating my dead wife�s arm and part of her body�. If Mon had made clear to Yama that he alleged that Kopom had exhumed and eaten part of his wife, Yama would probably have checked the allegation by himself examining the body of Mon�s wife. Yama inspected the relevant area but it is clear that he had no suspicion that the body of Mon�s wife, which was easily accessible, was alleged to have been mutilated by Kopom. The fact that Mon�s wife�s body was not inspected robs the court of what might otherwise have constituted one objective external fact cogently corroborative of the truth of Mon�s confession.

N2>(vii)��� The embroidering by Mon of his story, each time he told it, does not tend to persuade one of its truth.

N2>(viii)��� As matters stand, there is in the evidence not one objective external fact which tends to prove the truth of Mon�s statements. On the contrary there is a touch of the unlikely about the ultimate confession, and there is a sinister touch about the personality and activity of Timba. It is quite true that in this country there would be nothing remarkable in native men confessing to murder out of fear of sorcery or violence. There would be nothing remarkable in certain �small� men of the clan being chosen by others to take the blame for a crime for which others were jointly responsible. They might well take the blame either from fear of hostile and fatal sorcery or under the influence of promises.

In the circumstances of this case it is not an unreasonable hypothesis that Mon and Debong have been chosen to confess to this murder to explain the absence of Kopom, that unfortunate man having been murdered and eaten by other members of the community. The bones discovered may well be Kopom�s bones, which were separated from the skeleton when it was dismembered for the purposes of the feast, and located by Timba because he knew where to look for them.

When confessions are not supported either from within or without, the court must subject them to keen scrutiny. When the court is dealing with native persons whose ways are frequently inscrutable, it is not for the court to reject hypotheses because they are not reasonable as applied to the white man. The onus is on the Crown to convince the court of the reality of its allegations against a background of the unknown In such a setting an ounce of objective evidence is obviously of great value to the tribunal and the absence of that evidence may well be fatal to the Crown. There is no self-corroborating feature in the terms of the confessions of Mon and Debong. On the contrary they do not tend to carry satisfaction to the mind but rather do they raise questions to be asked.

In the circumstances the evidence does not induce in my mind a degree of conviction of the guilt of Mon and Debong which excludes reasonable doubt. Accordingly they are acquitted.

Verdict: Not guilty.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: J. G. Smith, Acting Public Solicitor.