National Court of Papua New Guinea

“Steven had told me he hit him first, and then I told Steven I had hit him later on. I told this to the Police.”

He also said under cross-examination.

“I thought that the man I hit had been the man who died.”

Apropos of the first of the two statements immediately foregoing, Joseph Naso under cross-examination made a statement which I accept, and which I have recorded as follows:

Okole at the C.I.B. Office pointed out Tolira to the C.I.B. He said both of us fought together Reme Malala and Tolira agreed that that was so. He said “I killed the old man.”

Once again, Defence Counsel sought from her client no explanation as to the inculpatory form of his statements to the Police so far as concerned the central matter in dispute in this trial, namely the identity of the person he had assaulted with the deceased. She simply sought to negate the confession in this respect by ignoring it, both in her client’s evidence and in her address, and having her client give evidence in chief ‘inter alia’ as follows:

I did know the man I hit. I couldn’t see his face...I just hit him and kept on running...it was too dark to see faces... I did not know the name of the man I hit. I didn’t know where he came from...I first heard at the CI.B. that a man had died. I first heard his name there. I did not know the man they named.”

This, incidentally was considerably stronger in import than the position this accused took up in his statement on oath to the committal court when he said he was “not too sure” which man he had struck.

A confession is ‘prima facie’ evidence of the incriminatory matters unequivocably admitted to therein (R. v. Chatwood and OthersN216.html#_edn177" title="">[clxxvii]¹. On the face of this confession it was made, as to the identity of the man the accused hit with the deceased person named in the charge, of the accused’s own knowledge, and without doubt on his part. If he had not been sure of this identity he could have said so to the Police. Having observed this shrewd, not unsophisticated, young man intently following the evidence from the dock and having seen and heard him in the witness box, I had no doubt that he would have done so. Neither the form nor the substance of the record of interview Was challenged in the slightest way in the trial. If his admission had been, for instance, based on hearsay or faulty inference, or mere assumption, or a “wavering preference for one of two or more possible hypotheses” (Lustre Hosiery Ltd. v. YorkN216.html#_edn178" title="">[clxxviii]² evidence of thisweaken or d or destroy the probative value of the confession could and I am sure would have been given. None was forthcoming. It is true that the State Prosecutor did not probe these matters iss-examination but why shou should he? Why should he give the accused an opportunity to invent in the witness box exculpatory explanations of matters that experienced and competent and more senior defence counsel, having taken instructions, thought it better, in the interests of her client, not to venture upon. No doubt he could see that, as things stood, the confession was one cogent reason for disbelieving any evidence by the accused to the effect that he did not know whom he hit, or that he did not know the person he hit was the person who died, and for concluding that the person this accused hit and the person who died were one and the same.

On the question of identity the confession did not stand alone. The accused in evidence stated that he hit the person he did hit with a piece of timber produced and tendered as an exhibit by the State, or one similar to it. This was a piece of 4" x 1" heavy hardwood about four feet long. Asked how he had struck the blow the accused, holding the timber with his left hand, about one-third from one end demonstrated a downward blow from overhead of some considerable force with the one inch edge. I am sure he did not in this demonstration exaggerate the force he actually used, but as demonstrated in my opinion it would have been quite enough to render a man unconscious for quite some time if it had hit him anywhere on the head. That was the purpose with which he hit his victim, as he told the Police (Answer to Q.23, Record of Interview) and no doubt he used such force as he considered commensurate with that purpose. In line with that purpose, also, he would have struck for the head. The deceased upon medical examination after death was found to have a number of face and scalp injuries one or perhaps more of which was or were consistent individually with having been caused by a blow with an edged piece of timber. This was what the doctor said, and she was not cross-examined on this.

The accused told the Police that he had in fact knocked his victim to the ground. After the fight as the accused, still carrying the piece of timber, returned with his group to the store he was heard by a State witness Joseph Naso, a Duke of York man, to call out loudly that he had hit an old man with the piece of timber. The witness’s actual words, upon which he was not cross-examined were “See this. I ‘killed’ an old man with it and he is sleeping on the road.” I accept Naso’s evidence on this and it is in fact supported in part in the record of interview, answer to Q. 27.

Joseph Naso had come to the party with the deceased who had become drunk, and had tried to persuade him from leaving the party and going along the road whilst the fight was going on. However the deceased did leave to go along the road and Joseph remained at the store. It was shortly after this that the accused returned to the store and called out as aforesaid. Upon hearing what the accused said Joseph was immediately apprehensive concerning the deceased and without delay went down to the road. There he found the deceased unconscious on the road, and said that he was the only one lying on the ground. There was no evidence that anyone else was rendered unconscious or was lying on the road at any time or that anyone else was seriously hurt. Sam Toliva the storekeeper, an educated man of apparent importance and responsibility who was called as a witness by the Defence stated that people had cuts and bruises but that the deceased was the only person he had heard was seriously hurt. Although stones and bottles and sticks appear to have been much in evidence, in a non-curial sense, this seems to have been one of those skirmishes which so often occur in this country, largely - “all sound and fury signifying nothing” - or almost nothing, until there is a real casualty, then the fighting breaks up.

I was not impressed with either accused in the witness box, and I was satisfied that they collaborated in inventing defences based upon the question of identity. Altogether, I was satisfied beyond reasonable doubt that the deceased Reme Malala Wakore was the person hit by the accused on the head with the timber, the ‘coup de gras’ in a group assault that resulted in his death. The evidence was that the injuries inflicted would not in themselves have been fatal or likely to have resulted in permanent injury either severally or collectively and the deceased died, it seemed, from asphyxiation due to inhalation of blood, mucous and stomach contents whilst in a state of unconsciousness. I was not satisfied that the accused intended to inflict permanent injury and accordingly I considered that the appropriate verdict was a verdict of unlawfully killing which verdict I accordingly returned.

Solicitor for the State: C. Maino-Aoae Public Prosecutor

Counsel: M. Jalina

Solicitor for the Defence: D. McDermott A/Public Solicitor

Counsel: M. Ridsdale

<77">N216.html#_ednref177" title="">[clxxvii]^{(1980) Crim. Law Review 46}

N216.html#_ednref178" title="">[clxxviii]^{[1935] HCA 71; (1935) 54 C.L.R. 134}