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Regina v Dese [1974] PGLawRp 51; [1974] PNGLR 23 (24 December 1971)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 23 - Regina v Worobi Dese

[1974] PNGLR 23

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

WOROBI DESE

Port Moresby

Frost ACJ Kelly Raine JJ

15 December 1971

24 December 1971

CRIMINAL LAW AND PROCEDURE - Appeal - Particular grounds - Verdict �unsafe or unsatisfactory� - Manslaughter - Self defence - Supreme Court (Full Court) Ordinance 1968, s. 28 (1)[xxix]1.

The appellant was charged with wilful murder. The trial judge found that the appellant killed the deceased by shooting an arrow at him from a bow but considered that the prosecution had not negatived provocation and so found the appellant guilty of manslaughter. The trial judge held that the defence of self-defence failed. On appeal against conviction, held, that because of the manner in which the trial was conducted and in particular the inadequacy of the factual material before the trial judge on vital matters and the extremely sketchy evidence as to the appellant�s reasons for acting as he did, in the circumstances it was unsafe on material presented in the way in which it was to reach the positive conclusions which the trial judge did in order to negative the defence of self-defence and the appeal should be allowed and the verdict set aside pursuant to s. 28 (1) of the Supreme Court (Full Court) Ordinance, 1968.

R. v. Cooper (Sean) [1969] 1 Q.B. 267 followed.

The Queen v. Himson Mulas [1969-70] P. & N.G.L.R. 1 referred to.

Appeal

This was an appeal against a conviction for manslaughter and sentence of three years� imprisonment imposed. The facts are sufficiently set out in the judgment of the Full Court.

Counsel

P. Luke, for the appellant.

J. Greville Smith, for the respondent.

Cur. adv. vult.

24 December 1971

FROST ACJ KELLY RAINE JJ: The appellant appeals against his conviction for the manslaughter of one Sumagi Gosani. He also appeals against the sentence of three years� imprisonment on the ground that it is too severe. The appellant was charged with the wilful murder of Sumagi, but the learned trial judge, after finding that the appellant killed the deceased by shooting an arrow at him from a bow, considered that the prosecution had not negatived provocation, and accordingly acquitted the appellant of wilful murder and found him guilty of the lesser charge of manslaughter.

The crime occurred in the Nomad Sub-district which is an isolated area some 200 miles north of Daru in the Western District. It is a sufficient indication of the primitive nature of the people to note that they still practice cannibalism as is shown by the evidence as to the fate of the deceased�s body. First contact with the Administration dates only from 1964.

The investigation was conducted by a patrol officer Mr. Fitz-patrick, who, speaking pidgin, was able to communicate with the witnesses through interpreters speaking the local language Gabusi. In the same way two interpreters were required at the trial to elicit the evidence.

The trial was a short one. There is really no conflict of evidence on the face of it; indeed, the accused, who gave evidence, was not cross-examined.

Put very shortly the facts are that earlier this year a man called Isira, a brother of the appellant who had been sleeping in his house, feeling ill, was lying in the sun. The deceased, Sumagi, was an inhabitant of the village. He was, it is generally agreed, a bit �queer in the head� or �long long�. For no apparent reason Sumagi killed Isira with an axe. This was seen to happen by the appellant. Thus, in this primitive community, a highly dangerous and quite electric situation was created. In his statement to the patrol officer who investigated the matter, the appellant said that Sumagi who had been sitting inside the house with the appellant and some of his friends used the false pretext that there was no firewood to take his axe outside the appellant�s house, where he used it to kill Isira.

In his statement to the patrol officer the appellant said �My friends ran away but I took my bow and arrow and said to Sumagi �If you killed my brother now I am going to kill you�. I took the bow and arrow and shot Sumagi in the chest.� Sumagi died as a result of this. At the end of this statement, which is a continuous narrative, the appellant said, �Sumagi was going to kill me with his axe so I killed him first�.

In his sworn evidence the appellant, contrary to what he suggests in his statement, indicated that he was outside his house when he saw the deceased put Isira to death and the learned trial judge found as a fact that at that point of time the accused was standing some twenty feet from the house. He said that he got up, ran into the house, and there got his bow and arrows. He does not state whether he then left the house, but says �When I got inside the house and took my arrow I did not stop. I just came quickly and shot my arrow�. He said that when he did this Sumagi still had the lethal axe in his hand and was coming towards him. In examination-in-chief when asked why he shot Sumagi, he said, �He killed my brother, so I shot him. I had no other reason�.

This answer obviously gave the appellant�s counsel cause for alarm, because he instantly, and without objection, reminded the appellant of his final and potentially exculpatory statement to the patrol officer. The appellant said he remembered saying this, and, when led, again without objection, said that was also a reason he shot Sumagi, as he put it, because, �Sumagi was going to kill me with his axe, so I killed him first�. As already indicated, the appellant was not cross-examined by the Crown Prosecutor.

The examination-in-chief of the appellant was unsatisfactory. He was not asked why he thought Sumagi would kill him. Not one question was asked about Sumagi�s demeanour. The manner in which Sumagi held the axe was not investigated. No question was put to the appellant by his counsel to indicate whether he was inside his house when the deceased advanced upon him and if so whether the position was that the deceased was entering the door of the dwelling armed with an axe with which, only moments before, he had killed the appellant�s brother. Another question which would have followed from that was whether this was the only door so that the appellant had no means of retreat. If there was some reason for these questions not being put in examination-in-chief, the Crown Prosecutor should have probed these matters, which had particular relevance to the defence of self-defence. Unfortunately the learned trial judge did not have the benefit of an accurate description of the house or the area because the patrol officer did not view the spot where the deceased was killed.

The learned trial judge found that after the killing of Isira the appellant then walked back into the house, picked up his bow and arrows and shot Sumagi dead with one shot, and there is no reason to disagree with this finding. His Honour then found that when he was shot, Sumagi was walking towards the house with his axe in his hand and carrying no other weapon.

With great respect, on a close examination of the evidence, we are of opinion that everything points to Sumagi having got very near to or through the door of the house. The appellant, in his statement, seems to make it clear enough that he went into the house to get his bow and arrows. He also says �We put my brother�s body in my house and Sumagi�s body outside�. As Isira was certainly killed outside the house, the suggestion is that Sumagi died inside the house. The eye-witness Yaruwo says that after killing Isira the deceased �was going back to the house,� that he �went up to the house and this man here took his bow and arrow and shot him�, and that when the appellant shot him �Sumagi came in through the hut carrying his axe with him.� In addition there is the specific statement by Yaruwo that the deceased was killed in a house. The other eye-witness, Henea Samgabo, said that when the appellant shot him, �Sumagi was coming inside the house� and that �Sumagi was still holding an axe�.

This is a case where we believe that we are not, as is so often the case, in a disadvantageous position because we did not see and hear the witnesses. We say this because the evidence is scanty and, as we see it, there was no real contest on factual issues. There is no suggestion as sometimes happens, that the climate of the trial was not reproduced in the transcript.

After setting out his findings of fact, the learned trial judge said, dealing with the matter that concerns us:

�The Defence of Self-Defence

This is raised under Part II of s. 271 of the Criminal Code of Papua and once raised of course, it is necessary for the Crown to negative the defence.

The facts proved as to which I have made specific findings above, and the other evidence led by the Crown and given by the accused, established beyond reasonable doubt:

(a)����� that no assault (as defined by s. 245 of the Code) was actually committed upon the accused;

(b)����� and that even if the accused entertained an apprehension of such an assault, and of death or grievous bodily harm resulting therefrom, it was not in the circumstances a reasonable one;

(c)����� that even if the accused believed that he could not otherwise than by killing the deceased, preserve himself from death or grievous bodily harm�such was not a belief on reasonable grounds;

(d)����� that even if such a belief were held, and on reasonable grounds, the force used was not in the circumstances necessary.

Accordingly, I rule that the defence of self-defence must fail.�

At no stage in his judgment did his Honour specifically deal with the appellant�s assertion to the patrol officer that �Sumagi was going to kill me with his axe so I killed him first.� This assertion was repeated when the appellant gave evidence. But for what was said in evidence and in the statement it would have been difficult to set up the defence of self-defence. His Honour obviously did not disregard these matters, because, as will be seen above, he considered the defence was raised and that it was necessary for the Crown to negative the defence. His Honour made no specific reference to these matters in his findings of fact, nor in the conclusions set out above. Indeed, these conclusions suggest that the learned trial judge accepted the accused on this factual issue or at all events was not prepared to disbelieve him.

Having accepted and found as a fact, as he was clearly entitled to do, that immediately before shooting Sumagi the appellant said �You killed my brother, I�m going to kill you�, the learned trial judge quite properly proceeded on the basis that when the appellant went into the house for the purpose of getting his bow and arrows he intended to revenge the killing of Isira. But this is not to say that when confronted with Sumagi entering, or about to enter the house still armed with the axe and bearing in mind his evidence that Sumagi was coming towards him, the appellant did not honestly and reasonably believe that Sumagi was threatening to attack him with obviously a present ability to effect that purpose, so that by the combined operation of ss. 24 and 245 of the Code the appellant�s criminal responsibility would fall to be determined as though there had been an assault upon him. Furthermore, in this menacing situation the circumstances were certainly such as might have caused reasonable apprehension of death or grievous bodily harm and the appellant might well have believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm other than by acting in the way in which he did, the force used then being necessary for his defence. If this were so we would consider that the fact that the appellant was also motivated by a desire for revenge would not be sufficient to exclude beyond reasonable doubt that he was acting in self-defence in those circumstances.

The learned trial judge concluded that any such apprehension or belief which the appellant may have had was not reasonable. However because of the manner in which the trial was conducted and in particular the inadequacy of the factual material before his Honour on the vital matters to which we have already referred and the extremely sketchy evidence as to the appellant�s reasons for acting as he did, we are left with the strong feeling that the learned trial judge was not really in a position to reach the positive conclusions which he did in order to negative the defence of self-defence, and that in the circumstances it was unsafe to reach such conclusions on material presented in the way in which it was.

In Reg. v. Cooper (Sean)[xxx]², the present Lord Chief Justice of England, Widgery L.J., as he then was, said, at p. 271, �It has been said over and over again throughout the years that this Court must recognize the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act, 1966�provisions which are now to be found in s. 2 of the Criminal Appeal Act, 1968�is was almost unheard of for this Court to interfere in such a case.

However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.

We have given earnest thought in this case to whether it is one in which we ought to set aside the verdict of the jury, notwithstanding the fact that they had every advantage and, indeed, some advantages we do not enjoy.� See also The Queen v. Himson Mulas[xxxi]³.

The legislation under consideration by his Lordship and the law that we are required to apply correspond so closely that we would see no reason to attempt to distinguish R. v. Cooper (Sean)[xxxii]⁴.

For the reasons which we have given, we have rather more than lurking doubts; we have �a feel of the case� which makes us react unhappily to the ultimate result. Widgery L.J., in the passage cited above, acknowledged the advantages the jury had, some of which were not enjoyed by the Court of Appeal. As we have said, we do not feel that we are similarly disadvantaged, and we consider that this is a case in which it would be unsafe to allow the conviction to stand.

The appeal is therefore allowed, the verdict set aside and the conviction and sentence quashed. We are not disposed to order a retrial and we direct that a verdict of acquittal be entered.

Appeal allowed, verdict set aside. Conviction quashed. Verdict of acquittal to be entered.

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

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

[xxx][1969] 1 Q.B. 267.

[xxxi][1969-70] P. & N.G.L.R. 1.

[xxxii][1969] 1 Q.B. 267.

[xxxiii] [1967] 1 Ch. 387.