Kiala and Gomosi, The State v [1977] PGNC 22; [1977] PNGLR 470 (17 November 1977)

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CRIMINAL LAW - Criminal liability - Aiding and abetting - Proximity and support in setting of tribal compulsions - Joint assault - Manslaughter - Criminal Code s. 7(c), s. 8.

CRIMINAL LAW - Practice and procedure - Criminal Code - Citations from U.K. and non-code States to be avoided - Development of Papua New Guinea jurisprudence to be encouraged.

Two accused were charged with manslaughter arising out of an incident on the road outside an hotel following the midday drinking session. The evidence established that the victim was felled by a hard blow with the fist delivered by the accused Laiam to the left of the victim�s chest under the armpit, who then stepped aside, that the other accused Meiri having taken his shirt off in close proximity and moved to fight, then kicked the victim in the stomach. Death ensued comparatively shortly thereafter due to rupture of an enlarged spleen.

N1>(1)�� The victim�s death had clearly resulted from the attack by the two accused and from no other cause, although it was not possible to draw a conclusion that the death was to be attributed to the punch, the kick, or to a combination of the effects of both.

N1>(2)�� Assuming Meiri�s kick to have been the cause of death, Kiala�s stance, proximity, previous action and continuing presence must have encouraged, facilitated, shielded the assault from interruption; and would clearly render him an aider and abettor within the meaning of s. 7(c) of the Criminal Code.

N1>(3)�� Assuming Kiala�s punch to have been the cause of death, the action of Meiri in moving to the support of Kiala, when he was seen to be taking off his shirt and moving to fight and in immediately launching a kick when the victim fell and after Kiala stepped aside, clearly associated and identified Meiri with Kiala�s assault, by way of furtherance, shielding from interference, so as to require the conclusion that Meiri was aiding Kiala in committing the fatal assault.

Reg. v. Abia Tamule and 11 Others (Unreported judgment No. 776 Nov. 1973) and The State v. Muneme Siure and 2 Others (Unreported judgment No. 116 Nov. 1977) referred to.

N1>(4)�� Accordingly, on both views of the cause of death, each accused was guilty of aiding the other in the commission of the offence and both should be convicted of manslaughter.

N1>(5)�� Semble, so notorious are the usual compulsions in Papua New Guinea society among tribal brothers immediately to move to the support when a fight develops, as to be given judicial notice where questions of joint assault and/or aiding and abetting are involved.

N1>(6)�� Semble, the time has come when citation of United Kingdom cases and those from non-code States of Australia should be eschewed unless they relate to subjects clearly not covered by the Papua New Guinea Criminal Code.

PRENTICE DCJ: The accused stand jointly charged with the manslaughter of one Philip Koka. The victim�s death occurred on the road outside the Wau Hotel on 4th May, 1977 following a midday drinking session. Death was due to rupture of an enlarged spleen (3 times normal size) � and would have ensued comparatively shortly after the injury was sustained (within half an hour).

The evidence of the State witnesses, if accepted, would establish that the victim was felled by a hard blow with the fist delivered by the accused Laiam to the left-part of the victim�s chest under his armpit; and that the accused Meiri thereupon, and while the victim�s body was still showing signs of movement, kicked the victim in his stomach. Very shortly thereafter he was seen to be dead.

Counsel for each accused maintains that the evidence in any event does not establish whether the punch, the kick or a blow that might have been delivered by some third person caused the death. On behalf of Meiri it is further suggested that the mere fall to the ground could have been the factor causing the rupture. Each submits therefore that there should be an acquittal of manslaughter and a conviction of common assault.

Neither accused gave evidence nor made a statement from the dock. Apart, therefore, from any material of an exculpatory nature in their respective records of interview or in the evidence of Laiam Kiala on the voire dire, the only evidence before the court is that of the State witnesses.

It is submitted that of the three eye-witnesses to the alleged assault, one was the brother and one the grandfather of the deceased, and the third some sort of tribal brother of the said grandfather; and that I should look upon their evidence with some suspicion as being intended to put responsibility willy nilly upon two members of an �opposing line� irrespective of any actual participation by them in the assault. I bear in mind the ever-present possibility of such a revengeful �marking�.

I remind myself that I must be convinced as to any issue beyond reasonable doubt, before conclusions might be erected thereon.

In a record of interview taken the following day, after the death, the accused Laiam, who had voluntarily put himself in protective custody after initially running away from the scene and had meantime survived an assault by an enraged party of Goilala men upon the Wau Police Station, answered a series of questions. He stated he had been involved in a fight outside the hotel ... with �Keru Lui�, brother of the man who died in the fight. �I saw�, he said, �some of the men fighting, my two uncles, and when I turned around I saw Philip Koka and then I hit him. I hit him with my right hand � on the middle of the stomach�. Asked �When you have hit him what did he do then�, he replied: �He fell at the side of the road on the grass�. He hit Philip only once, he �pulled his hand at his back and hit him on his stomach� (by which I take it is meant a punch swung from behind the shoulder). He saw Meiri and another man hitting and kicking him. When Philip fell he kept turning himself from side to side. He stated that when he had arrived at the Police Station to report the incident he said �We have killed a man in a fight and he was dead�.

Meiri Gomosi in his record of interview stated in answer to an early question �I was drunk and fought that man to death�; but this answer probably has to be qualified by the remainder of the record of interview. He described an argument in the hotel over beer spillage, and that some men fought him and he fell to the ground. At that time, he said, he was �full drunk� (he explained he had been drinking only hard liquor � gin and bacardi). He continued, �Some people saw me and they told my wantoks and I slept and I don�t know ...�. Asked later, �At Wau Hotel you fight with one man�, he replied: �No, they only fight me�. He said he knew nothing about kicking the deceased in the stomach. On being told four witnesses had seen him fighting the deceased, and asked to comment, he replied: �I don�t know�.

Bearing in mind the contents of these records of interview, and observing the demeanour of the three State witnesses who claimed to have seen the attack, I find no reason to disbelieve their evidence. There are minor inconsistencies between their versions � but not such as would shake their testimony. They were careful � not over eager in giving their evidence. There was no sign of exaggeration in detail that I could detect.

I am satisfied that Laiam did punch the victim in the chest with a very hard blow of his closed fist which felled him. That preparing to do so, he took off his shirt so as to fight. That Meiri followed by delivering a hard barefooted kick to the supine man�s stomach. I am satisfied that the victim did not die immediately he hit the ground � he was stirring a little before the kicking. Neither Laiam Kiala or Meiri Gomosi said anything to the victim before attacking him. Nor did the victim say anything to them. Meiri Gomosi stood there after the kicking.

The witness Lui Koka said he was standing near the deceased when the two accused �came up� and killed him (the deceased). Meiri Gomosi remained standing near the body until this witness came back with the police who arrested him.

The witness Daria Papai, the grandfather, spoke of the two accused �doing it together� (the hitting and kicking). He stated that when Meiri Gomosi kicked Philip, Laiam stood there and watched. He was standing close by when Meiri Gomosi kicked Philip. He indicated right alongside � a foot or two � he Laiam was facing the body when Gomosi kicked it.

Bauwe Marari was the third eye-witness. Though a �brother� in some sense of the grandfather � he is a Morobean not a Goilala. He too described Laiam Kiala�s punch to the chest and the victim�s fall. He described the kick by Meiri Gomosi to the stomach. He also indicated that he was at that moment standing there looking down � standing alongside the body a foot or two only away. The victim did not move after the kick. This witness was something less than 15 feet from the spot when Philip was assaulted. He saw Laiam take off his shirt initially before moving towards and punching Philip. He stated Meiri Gomosi was standing alongside Laiam Kiala when the latter punched Philip and when he jumped to one side, Meiri Gomosi then kicked the prostrate man.

I do not think it is possible to come to a firm conclusion as to whether Philip�s death is to be attributed to the punch, the kick or to a combination of the effects of both. But I do consider the other suggestion that it may be attributed merely to a fall to be so far-fetched as not to amount to a real possibility. If it were attributable to the fall, that fall would in any event seem to result from Laiam Kiala�s punch. There was no evidence before the Court that Philip was hit or kicked by anyone other than Laiam or Meiri Gomosi (apart from the reference in Laiam�s record of interview). I consider Philip�s death clearly to have resulted from the attack by Laiam and Meiri and no other cause.

One view which I think is open, is that this became a joint assault in prosecution of a common purpose once Laiam Kiala indicated by taking his shirt off and moving in an obviously aggressive mood towards Philip, and Meiri Gomosi moved to his support. Such are the notorious usual compulsions in Papua New Guinea society among tribal brothers immediately to move to the support when a fight develops. But I do not think the prosecution needs to rely upon s. 8 of the Code to obtain a conviction.

I am satisfied both Laiam Kiala and Meiri Gomosi at the relevant time were standing and moving in close proximity to one another towards Philip. They were clearly in a position to aid and encourage one another � to facilitate the one an action of assault by the other even by shielding such attack from interference by others of another line who were only a few feet away. Assuming Meiri Gomosi�s kick to have caused, solely, or to have provided the coup de grace for Philip�s death, Laiam Kiala�s stance, proximity, previous action and continuing presence must have encouraged, facilitated, shielded the assault from interruption, and would, I consider, clearly render him an aider and abettor within the meaning of s. 7(c) of the Code (see my decision in the case of The State v. Muneme Siure and 2 Others[dvi]¹�and the cases referred to therein viz. Regina v. William Taupa Tovarula and Others[dvii]², the judgment of Minogue C.J.; and the subsequent judgments of Frost S.P.J. as he then was and myself consecutively in The Queen v. Abia Tambule and 11 Ors.[dviii]³; and The Queen v. Kanoa Les and 3 Ors.[dix]⁴�(murder trials involving multiple accused).

Assuming on the other hand, the punch by Laiam Kiala to have been the principal cause of the injury sustained by Philip; in a similar fashion the action of Meiri Gomosi in moving to the support of Laiam Kiala when he was seen to be taking off his shirt and moving to fight, and in immediately launching a kick when the victim fell after Laiam Kiala jumped to one side of the body and stood alongside Meiri Gomosi, clearly to my mind associated and identified Meiri Gomosi with Laiam�s assault, by way of furtherance, shielding from interference and potentially to aggravate the effect of Laiam�s blow, so as to require the conclusion that Meiri Gomosi was aiding Laiam Kiala in committing the fatal assault.

On both views of the cause of death therefore, I find Laiam Kiala and Meiri Gomosi to have been aiding one another in the commission of an offence � an obviously severe and dangerous assault which resulted in the death of Philip Koka. I convict both of them as charged with the manslaughter of Philip Koka on 4th May, 1977.

I should like to add that I feel greatly indebted to the research which counsel for the accused Laiam Kiala, in particular, has been able to make and present for the Court�s assistance. However, with respect and without intending criticism in any way, I think the time has come when citation of United Kingdom cases and those from non-Code states of Australia should be eschewed unless they relate to subjects clearly not covered by our Code. The Code we have must be administered by Papua New Guinea lawyers, who should I think, be assisted in their deliberations if reference to decisions of countries and states which do not adhere to a Code similar to our own is made less frequently. The administration of the law by a small number of National Court judges and a small number of qualified lawyers, whose time is strictly limited, may I think be delayed if the tendency of the past to relate to United Kingdom decisions, statements in Archbold and so on, are persisted with. We should be building up a body of decisions of Papua New Guinea courts for specifically Papua New Guinea situations and customs.

I appreciate there is a limit to the books which may be taken on circuit. But there are many illuminating decisions on our Code, by this Court and the Supreme Court and their predecessors. I hope that in the near future we will be provided with an edition of the Criminal Code of Papua New Guinea annotated with Papua New Guinea decisions, and possibly where no such Papua New Guinea decisions are available, with appropriate decisions of Queensland, Tasmania and Western Australia or African countries where similar Code provisions are obtaining. To be met on a circuit of necessarily short duration, with the necessity to compare United Kingdom decisions on the common law of the United Kingdom with those on a code such as ours, can be a most demanding and sometimes unnecessary exercise. The Constitution�s provisions as to common law do not of course apply to the Criminal Law�s provisions of substance (as contrasted with those unenacted ones of procedure).

[dvii][1973] P.N.G.L.R. 140.

[dviii]Unreported judgment No. 769 Oct. 1973.

[dix]Unreported judgment No. 776 Nov. 1973.

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National Court of Papua New Guinea

Kiala and Gomosi, The State v [1977] PGNC 22; [1977] PNGLR 470 (17 November 1977)

Papua New Guinea Law Reports - 1977