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State v Awoda [1983] PGNC 20; [1983] PNGLR 83; N416 (25 February 1983)

N416

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

STEPHEN ISAAC AWODA

Lae
Kaputin J

16-18 February 1983
21-22 February 1983
25 February 1983

CRIMINAL LAW - Evidence - Defence case - Desirability of establishing at commencement of trial.

CRIMINAL LAW - Evidence - Identity - Of deceased - Murder - Sufficiency of proof.

CRIMINAL LAW - Murder - Identity of deceased - Sufficiency of proof.

Held:

(1) It is desirable in the interest of a fair trial that the defence disclose its case at the commencement of the trial: it is undesirable that matters to which credit and weight may be accorded should be kept secret and raised at the last moment;

The State v. Ogadi Minjipa [1977] P.N.G.L.R. 293 considered and applied;

(2) On a charge of murder it is sufficient for the purposes of identifying the deceased, if the evidence establishes that the deceased referred to in the indictment is in fact the person allegedly killed by the accused: the body of a deceased may thus be identified even though the name be unknown;

R. v. Judge (1885) 2 W.L.J 61 referred to.

Cases Cited

Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R. 619.
R. v. Gubarloor (1906) 8 W.A.R. 130.
R. v. Judge (1885) 2 Q.L.J 61; 2 W.L.J 61.
R. v. Knack (1888) 3 Q.L.J 101.
R. v. Murphy (1867) 4 W.W. & A’B. (L.) 63.
R. v. Onufrejczyk [1955] 1 Q.B. 388; [1955] 2 W.L.R. 273; 39 Cr. App. R. 1.
State, The v. Ogadi Minjipa [1977] P.N.G.L.R. 293.

Trial

This was the trial of an accused on a charge of murder. The case is reported only on evidentiary matters arising during the course of the trial.

Editorial Note

Appeal to the Supreme Court has been lodged.

Counsel

L. Henao, for the State.
I. Glasgow, for the accused.
Cur. adv. vult.

25 February 1983

KAPUTIN J: The accused man stands trial upon indictment that he on 26 April 1982, in Papua New Guinea murdered one Nime Makam. The charge is laid under s. 300 of the Criminal Code Act (Ch. No. 262), which provides as follows:

"300. Murder

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

...

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

..."

The State proceeded more specifically under s. 300(1)(a).

The accused man is a probationary constable attached to Lae Police Station. He has been with the police force since 1980. He is alleged to have beaten to death the deceased man who was thought to be the suspect in an attempted rape on the evening of the day in question.

The State case is that the accused person assaulted the deceased by punching and kicking him at three separate stages on the same night and thereby caused injuries which led to his death. The defence case is based on a total denial that the accused hit the deceased at all, even though it was admitted he was present at some stage at the places where the alleged incidents took place; that the assault on the deceased was never committed by him.

[His Honour then considered the evidence concluding that assaults by the accused upon the deceased caused the death] and finding:

That the accused had manifested his intention both by words and by physical actions to cause grievous bodily harm to the deceased man, and that the deceased man in fact sustained grievous bodily harm, which led to his death.

That the suspect who was bashed up by the accused on the three separate occasions is the same man who is now deceased and who is the subject of this crime.

I also find that there is no evidence of self-defence or provocation which the court, on its own consideration, could find as defences available under the circumstances, even though the accused has not specifically raised them. The accused had simply over-reacted under the circumstances to do what he did.

I further find that the death of the man was not caused by or under any other suspicious circumstances other than that which I have already found.

There is still one last matter to consider. Very late in the trial at the final address by counsel, the defence disputed for the first time that the deceased man named in the indictment was not the man killed. He submits that the prosecution has not established that the man named in the indictment was the one killed. Mr Glasgow contended that if the prosecution failed to prove that the person named in the indictment was the person killed, he must be acquitted.

But the defence never cross-examined the State witnesses on this issue. However, as far as I am concerned, the matter of identity was not in issue. I must say that the defence has approached this trial by concealing its case from the beginning. And I had to order the defence to indicate what its case would be. I remarked that it is in the interests of a fair trial that the defence must disclose its case at the commencement of the trial. This Court is not here as a ground for "head-hunting", which is exactly how the defence had approached its case in relation to most issues. I quote a passage which is quite pertinent here from The State v. Ogadi Minjipa [1977] P.N.G.L.R. 293, at 296-297, per Prentice Dep. C.J who states thus:

"Before concluding, I should again mention, as other judges and myself have many times done before, that defence counsel do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit — if this course be taken. I draw counsel’s attention again to the old case of Browne v. Dunn [1894] 6 R. 67 H.L. (reported in Cockle’s Cases & Statutes on Evidence in 11th ed. at 265) which sets out the duty of counsel in this regard as understood in the United Kingdom and makes comments as to the credibility of the opposing case where this course is not taken. The comments of Lord Herschell, Lord Morris, Lord Halsbury and Lord Bowen, with respect, appear to me to be of plain common sense suitable to and applicable in our courts. The case of R. v. Hart (1932) 23 Cr. App. R.202, illustrates the converse case — that if the prosecution intends to ask the tribunal to disbelieve a witness — it is right and proper that that witness be challenged by cross-examination while in the witness box and it made plain that his evidence is not accepted."

The passage is self-explanatory. Of course there are cases where a witness would be so clearly lacking in credit that cross-examination might be foregone. However it is certainly not in this case. It would have done much good to the defence to cross-examine the State’s witnesses on the point. However they chose to keep this aspect secret and then raised it at the last minute, hoping that it would be accorded credit and weight sufficient to create doubt in the judge’s mind. Such is a futile course.

In any case, I find however that sufficient evidence of identity exists in the present case to establish that the deceased referred to in the indictment is in fact that person killed by the accused.

In support of his contention, Mr Glasgow relied on R v. Gubarloor (1906) 8 W.A.R. 130, which states that on a charge of murder or manslaughter it is essential that there should be evidence that the body, the subject of the crime, is that of the person alleged to have been killed; that the mere finding of a human body or human remains is not sufficient to establish a homicide. In that case, the prisoner was charged with having murdered one Hugh McKenna. Evidence was given showing that the prisoner had speared McKenna, and the body was found some days afterwards by a witness whose only evidence as to identification was, "I knew the deceased well." It did not appear that the witness had said that the body was that of McKenna. No other evidence as to the identity of the body was given. There, the conviction was quashed. I agree with that, as to my mind it was necessary, therefore, that the body be identified as that of McKenna so as to establish that he was the man killed by the accused. That is required to complete the necessary ingredients that go to make up the criminal offence. If the body could not be identified as that of McKenna then the accused must be acquitted.

However, the present case is quite the converse of Gubarloor’s case. The identity of the deceased in the present case is a non-issue. The name of the deceased does not matter either. The facts of the case have already established that a man is dead and that it is well-known the deceased man is the one whose death has been caused by the accused. Indeed, in this case, it is not even necessary that the deceased’s name be mentioned in the indictment. There are authorities which are based on common sense, which state the obvious that a body may be identified even though the deceased name be unknown. See R. v. Judge (1885) 2 L.J 61. It is not necessary to mention in the indictment the sex of a child alleged to have been murdered, if the sex is unknown. See R. v. Knack (1888) 3 Q.L.J 101. Once the "corpus delicti" has been established sufficiently the evidence used in establishing it may be used in proving the criminal agency: R. v. Murphy (1867) 4 W.W. & A’B. (L.) 63; Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R. 619. The phrase "corpus delicti" means the ingredients which go to make up a criminal offence. In a charge of murder it means that a crime has been committed, that is to say that the man is dead and that his death has been caused by a crime; per Lord Goddard C.J in R. v. Onufrejczyk [1955] 1 Q.B. 388; [1955] 2 W.L.R. 273; 39 Cr.App.R. 1.

In the present case, we know that the accused killed the man, who is the subject of this crime, and that the question of identity of the deceased is a non-issue. The "corpus delicti" has been established. All the elements of the charge have already been clearly established by direct evidence. Based upon the foregoing findings of facts and the reasons behind them, I have come to the conclusion that the prosecution has established all the elements of the charge beyond reasonable doubt. I am therefore satisfied beyond reasonable doubt that the accused is guilty of murder as charged. I find him guilty of it and convict him accordingly.

Verdict of guilty of murder.

______________________________

Lawyer for the State: L. Gavara-Nanu, Public Prosecutor.
Lawyer for the defence: A. Amet, Public Solicitor.