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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 33 OF 1995
STATE v PAULIN TAUPIN
And:
STATE v JIM KANDAMAIN
Mount Hagen
Injia J
16-17 May 1995
19 May 1995
22 May 1995
JUDGMENT
CRIMINAL LAW - Murder - Evidence - Identification - Sufficiency - Criminal Code Ch 262, Ss. 8; 300 (1) (a).
CRIMINAL LAW - Murder - Evidence - Expert evidence - Medical evidence - Deceased exhumed and examined six months after burial - Whether Court is bound to accept medical expert opinion as to cause of death - Weight to be attached to expert medical opinion.
Two prosecution witnesses clearly identified the two accused at the scene of the killing, one of them firing a gun at the deceased and the deceased fell down. At that time, a tribal inghting was still going on. Theased was shot on the frhe front right chest near the armpit. Tceased’s body was nwas not taken to the hospital because of the tribal fight.he bos buried two days days later. Six molater, the bthe body body was exhumed by a doctor and examination done. The doctor was unable to give an opinion as to the cause of death. However, whilst concg with with reasonable certainty that death was not caused by shotgun pellets, he also did not rule out death being caused by a rifle bullet. At the trial the medical report was tendered by thsecution and admitted into into evidence with consent of the defence.
Held:
(1) It is ut to oue Cto t cideecide whether or not to accept the expert evidence of a medical doctor and attach such weight as it thint to edicadence Rawe948] 1 A11 ER 744; R v Lanfear [1968] 1 A11 ER 683, 683, Jame James Fras Frank Rink Rivett vett 34 [1950] Crim App R 87; Beim v Collins [1954] 28 ALJ 331and Hollingsworth v Hopkins [1967] Qd R 168 considered and applied.
(2) e aeredicml report of a doca doctor is admitted into evidence by consent of the parties in a criminal proceeding, the court
mustcise in acng inetatiadditions or detractions put on the report by counscounsels.
(3)p>(3)  ټ Where tere the body of a 14 year old girl was exhumed and examined by a doctor some six months after burial and the medical post mortem report dt rul the bility of death being caused by a riflerifle bullet(s), and where the two accusedcused were were clearly identified by witnesses at the scene in possession of guns and one of them lifting the gun and celebrating the successful shooting of the victim after firing the fatal shot and this identification evidence was not seriously challenged or destroyed in cross examination it is open to the Court to infer that one of the accused shot the victim most probably with a rifle, if not a shotgun, such inference being the only rational inference which could be drawn from the evidence.
Cases Cited:
R v Rawell [1948] 1 A11 ER 744
James Frank Rivett 34 [1950] Crim App R 87
R v Lanfear [1968] 1 A11 ER 683
Beim v Collins [1954] 28 ALJ 331
Hollingsworth v Hopkins [1967] Qd R 168
R v Phillip Boike Ulel [1973] PNGLR 254
John Beng v The State [1977] PNGLR 115
Paulus Pawa v The State [1981] PNGLR 498
State v Tom Morris [1981] PNGLR 493
Statutes:
District Courts Act Ch No 40
Evidence Act Ch No 48
Oaths Affirmation and Statutory Declarations Act Ch 317
Texts:
Archbold’s, Criminal Pleading Evidence and Practice, 42nd Ed. (Sweet & Maxwell, London, 1985)
Counsel:
P Kumo for the State
P Dowa for the Accused
22 May 1995
INJIA J: The two accare jointly chay charged in one indictment that on 4 February 1994 at Pulapais village, Wabag, Enga Province, they in common purpose, murdered Miss Diamon Minapin contrary to Section 300 (1) (a) of the Criminal Code Ch. 262 (“the Code”). They ed not guilty to the the charge.
The evidence against the accused was given by two eye-witnesses who said they saw Paulin Taupin appear with Jim Kandamain and the former shot the victim with a gun. The first witnessavid Mina Minapin who is a brother of the victim. According to ’s evid evidence-in-chief, at about 6.30pm, he was st at his house with other people and mourning over the death of two of his brothers who were were killed by Pyain tribesmen in a tribaht between his own Sakaron aron tribe and the Pyain. At that tie fight was stil still going on some distance away. The two dec men were burieburied on a slope some distance away from the mourning place. Whilst he was at turning ping place he hone T Toko crying and and coming up the slope to the mourning place with the victim. Then Then he heard shot bhot being fired so ht down to see who fired the shot. Frdistance of e of about 1out 12m, he saw the two accused each with a gun in their hands stanabout 6m from the victim. Also with wo accused wsed wsed were Berom Alo, Ponape and Yasik Yapalin. w the victim lying on the the ground and as he tried to see who shot the deceased, Jim fired another shot aimed at him so he fled from the scene. The firot whilled the dece deceased was fired by Paulin. The; The victim wat on then the right front side near the armpit. Later came and cted the bohe body and cried over it. They buried her 2 days laner and repo reported the matter to the police some 2 afteral. d did not give any evidenvidence of examining the spot where she was shot to cono confirm the gunshot wound. They coot tae bodthe hose hose hospital because of the tribal fight. Six months , the body wody wody was exhumed for the doctor to examine.
David’s evidence was tested in cross-examination. From a clook at his ehis ehis evidence in chief and his answers in cexamination, I am not satissatisfied that he actually saw the first fatal shot which he says was fired by Paulin. He also did ntuall the sece second shot shot fired by Jim. I am however satisfied he t he arrived at the scene of the shooting after he hear gunshot blast and he saw the two accused with guns in their hands appearing near where thee the victim fell down near the cemetery o two late brothers. T60; The twused are known nown to him as his uncles. The two accused also eir ueir unsworn statements said David and Thomas are from the same village or area and are known to each other and that is why David and Thomas were able to fa accuse them. Also they did notute DavidDavid’s217;s evidence that they are his uncles. There was sufficient light because it was getting towards dark. clearly identified the twhe two accused with reference to his prior knowledge of the two accused, their appearance, the clothes each of them wore and the guns they each held. David’s ification evon evidence of seeing the two accused at the scene with guns in their hands was not seriously contested, disturbed or destroyed in cross examination.
The second prosecution witness is Thomas Toko. Acc; Accordinhis evidence-ence-in-chief, he is a Pyain tribesman who was in Lae at this time. He heard of thth of his twis two clansmen and decided to come home to mourn over their death. On th of the int, he left left Left Lae at 6am by PMV bus and arrived in Mt. Hagen at 1.30pm. In Mt. Hagen he n another ther bust to Lakaillage. There he met the victim and they both walked up to Pulapais village where thee they were mourning the death of the 2 me60; It was about 6pm - 6.30pm. On th, the victimictim walm walked ahead and stood on a slope to show him the cemetery of the two deceased. Up to this point, he didseot see anyone. As she stood tw him the twhe two cemeteries, he heard a gunshot. It was firedront of him.&#im. He didn’e who fired tred the shot and he didn’t see the shot actually landing on the vic#160;ot frightened andd and fell down thinking he was being shot at and then looked up to see whee who fired the shot. He saw Paulin withn in hisn his hand. Paulin lift the gun and jund jumped up and down in a celebrative mood saying “I used to killR#160; He also heard the victim saying “mama...” and from this he assumed that shat she had been shot. Then Jim appeared another ther gun and pointed at him so he ran away through another tribe’s land. As he waeing, he heard anod another being fired. There were 8 people alher ther there and he only recognised the two acco accused. The got up and celeb the kthe killing. The next day he came to Pulapais and mond mourned over the death of the deceased. Even thoe knew she had beod beot on the left hand side, he did not bother to check the exhe exact spot of the shooting at the funeral because he was frightened of being at. Two days later, he reported the matter to the pohe police.
Thomas’s evidence of identification of the two accused is also clear. He identifiem by recognitignition from prior knowledge of the two accused, the clothes they wore, the guns they held, the distinct actions in the manoeuvring of the two the guns they held, the words spoken by Taupin and so on. There wfficient light as i as it was going towards dark. The two accus their unswornsworn statements admit they are known to Davi>
In cross examination, Thomas’s identification evidence was not seriously challenallenged or disturbed. The defence cl souo attackttack his deme demeanour by, inter alia, attacking his movements that day but I think his demeanour was not really destr He was cross examined on the accuracy of his view and judgment whilst in a state of e of fear himself but he strongly maintained he saw them clearly when he looked up after the first shot. Except for a few pauses which show his lapse of memory on certain things, his story as to identification remains substantially intact.
In relation to the evidence of both David and Thomas, the former appears to assume that he saw Thomas. But it is clear to me he didn’t. Thomys he didn’t seet see David near the scene of the killing. However this is a minor area of contradiction which does not shed any real doubt as to wh at the scene and who was not.
The defence case is n is not one of mistaken identity. It is o false accusation.&ion.e principal basis on which hich this defence is based on is the alleged inconsistency between the medical evidence and the evidence o two prosecution witnesses as to the cause of death resultisulting from a gunshot injury.
The medical report of Dr John Watts of Sopas hospital dated 18 August 1994 was admitted into evidence by consent. The report ithe form of a of a certified statement and was tendered in the committal proceedings. Even thoue statement says says it was made on oath, it was not swornre a Commissioner for Oaths and therefore it is not in affi affidavit form: Oaths Affirmations and Statutory Declarations Act (Ch 317 14. Nevertheless, pus, pursuant to S. 94 (1) (B) of the District Courts Act Ch No 40, a certified statement is deemed to be an affidavit for purposes of Division III 2 (SS. 33-37 - Evidence by Affidavit) of the Evidence Act Ch 48. Pursuant to S. 37 (1) e Evhe Evidence Act, Dr John Watts’ medical report is admissible in these proceedings and it was on that basis that I admihis medical report into evidence. And because this medical report is critical to the the defence case, I will set out the pertinent parts of the report in full:
“AFFIDAVIT OF POST MORTEM REPORT:
I, Doctor J Watts the Medical Superinte of Sopas hospital, Wabag bbag being Duly Sworn Make an Oath and says as follows:
QUALIFICATION: I got Bachelor of Medicine at Auckland University, Bachelor of Surgery at Auckland University and also Bachelor of Human Biology at Auckland University.
18 August 1994
To who it may concern
Post Mortem Examination on Diamon Minapin 14 years female of Pulupais village, Wabag, Enga.
The examination was performed at the grave side at 5.30pm 17 August 1994.
The body was identified to me by her brother David Minapin. He alleged that the was shas shot with a shotgun on 4th February 1994.
The body was a young female of approximately 14 years as stated. The (was) wrapped in blankblankets and clothing. Significut factionoccurredurred to d to the body but the skin was still intact. Tdy appeared to be well bull built and nourished.
COMMENT: Because of the long time in the ground it was not possible to do a detail examination. This examination canbe take taken to exclude or prove death due to a single bullet (rifle) but it is reasonably certain that death was not due to a shot gun (pellets). This eationnable to give aive a cause of death.
It may be y be more informative (sic) to re-examine the body after further decay hasved the flesh and examine the bones for evidence or pellet injury.
I, Doctor John Wahn Watts certify that this one page of the Post Mortem report is true to the best of my knowledge and belief. I make it knowing thatt isit is tendered in evidence, I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.
(signe>
Doctor John Watts
Medical Superintendant
Sopas, Wabag.”
The two accused gave unsworn statements from the dock. Both say the being falselylsely accused because they are from the same area, the same village, the same council area and they are known to the 2 state witnesses. Jim goesher to say he was was out of the Enga Province at the time of the offence.
Mr Dowa for both accused submits that the medical evidence clearly does not support a case of the victim dyinm a gunshot injury as allegalleged and sought to be proved by the State. He submits that at the time of exhumation, the skin was still intact when the body was examined and operated upon by the doctor but he did not find any evidence of gunshot injury. In he is almost certain dein death was not due to a shotgun (pellets). He submits, this fact coupled with the failure to tak body to the hospital for medical examination and the delay in police investigating the crie crime and arresting the two accused 6 moafter the death raises a reasonable doubt as to the two acco accused’s involvement in the crime and therefore, they should be acquitted.
Mr Kumo for the State submits that the two eye witnesses were consistent with their evidence as to identification and the shooting, that the medical report does not rule out the possibility of death being caused by a single rifle bullet as opposed to a gunshot pellets, that the victim was a normal healthy young girl whose death is only explicable in terms of the gunshot fired by Paulin in common purpose with Jim. He submiat the State has phas proved its case beyond any reasonable doubt.
The real issue before me is whether death was caused by a gunshot wound. If I find it then as a mata matter infe from the identificationon evidenfore me, it will be l be safe and reasonable to infer that it was the same shot which was fby Paulin in common purpose with Jim. If I find that that the death was not caused by a gunshot wound, then there will be a reasonable doubt as to the involvement of the two accused in the crime and they will be entitled to an acquittal (because the proson’s only allegation tion is that the deceased died from a gunshot fired by Paulin in common purpose with Jim).
The quesof whether the court should accept the medical evidence of e of Dr. Watts and if so, what weight the court should attach to the medical evidence is import in this trial. In my brief research,ve beve been unable to find any local cases on these points. Thmon law principles are ware well settled. It is up to a judge (ry) try) to accept the evidence of a doctor and attach weig to it as it sees sees fit. An accurummary of the comm common law principles is statestated in Archbold, Criminal Pleading EvidAnd Practice, 42nd ed. (Swe (Sweet & Maxwell, London, 1985) at p. 1012, para 14-9:
“The duty of experts ‘is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence.’ Davies v Edinburgh Magiss ates (1953) SC 34, 40.) Althon expert may be regarregarded as giving independent expert evidence to assist the Court it is wrong for the jury to be directed that his evidence should be accepted in the absence of reasons fjecting it: R v Lanfear [19r [1968] 1 All ER 683.”
In R v Nawell [1948] 1 All ER 744, at p. 795; 32 Cr. App. Rep. at p. 180; the Court of Criminal Appeal said:
“Our view is that the evidence of a doctor, whether he be a police surgeon or anyone else, should be accepted. Unless the doctor himshowsshows it ought not to be, as the evidence of a professional man giving independent expert evidence with the sole desire of assisting the Court.”
The use of the word “acc” in the above passagassage raised some confusion. In R vear [1968] 1 All ER l ER 683 at p.685, the Court of Criminal Appeal clarified the above passabe by saying:
“What that passage meant in that context was that the evidence should beted, as regards admissibiliibility and other matters of that kind, like that of any other independent witness; but taken out of its context, the use of the word ‘accepted’ may well, we think, give the jury a false impression of the weight to be given to that evidence.”
The common law position was perhaps forcefully put by Gordard LCJ who delivered the judgment of the Court in James Frank Rivett 34 [1950] Crim. App. R. 87. In that case, the appellant appealed against the verdict of the jury which returned a verdict of guilty to murder after rejecting medical evidence of three doctors of undoubted intergrity.; They all gave evidence at the trial in support of the appe appellant’s defence of insanity. In dismissing the appeal, Goddard LCJ (p. 93-94):
“But the importance of this case, and it is one of importance, is that it gives this Court tportunity to emphasise, if emphasis be necessary, two matters of cardinal importance in then the criminal law...
The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless atil Parliament ordt ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper dion by a Judge, that by the law of this country the decision is to be entrusted. This This Courtsaid over aver and over again that it will not usurp the functions of the jury, though it may by virtue of the Criminal Appeal Act set aside a verdict if satisfhat no reasonable jury could have found a verdict of guiltyuilty in a particular case. Here, not, they had the ophe opinion of medical men of undoubted integrity and whose qualifications none would question. But they had ahe facts ands and the undis facts of all the surrounding circumstances. This is s is not a casee aere a scientific witness can say with certainty, as in tse of a bodily disease, from specific symptoms such as a ra a rash, a coma or other physical sign that a disease exists. The juve hehe indications ions thns that have led the medical witnesses to their conclusion; they have also heard all the other facts relato the man and the crime, including the evidence of the doctor who saw the man very soon aftn after it was committed. That he kn had done wrong rong is evidenced by the fact that he not only told his friend what he had done and indicated the consequences tould follow to himself, but gave himself up to the police for having committed murder.  Lete assumed he suffered fred from schizophrenia, or whatever doctors may call it; let it be assumed that he killed the girl on a sudden impulse; a jury of his couare satisfied that he was responsible, and it is not for thor this Court to say that he was not.”
These principles have found acceptance in Australia. See Beim v Collins [1954] 28 ALJ 331 and Hollingsworth v Hopkins [1967] Qd R 168 and 171-172.
I do not see any reason why those common law principles should not be adopted and applied to the circumstances of our country and in particular, in the case before me.
I am not bound to accept Dr Watt’s opinion as to the likely cause of death. But I think his opini to t to the likely cause of death due to gunshot injury is a fair and reasonable conclusion. W concluding with reasonabsonable certainty that death was not caused by a shotgun pellet, at the same time he does not exclude dbeing caused by a rifle bullet. He implies that the visible wounds which caused by shby shotgun pellets would be easily visible whereas a rifle bullet would not even after the body had undergone significant amount of decay after being buried for six month60; This conclusion was reas reached even after the left side of the ribs where the victim was allegedly shot was opened. In thence of any oral evid evidence from Dr Watts explaining his findings and his conclusions, I must be careful not to place my own pretation and conclusions on his evidence nor that of counsels. I will accept the repe report as it is without any addition or detraction to it. The most I cad on Dr. Watt Watts’ medical evidence is that death arising from a rifle bullet is noluded whereas death not arising from a shotgun pellet(s) iss) is reasonably certain, meaning it is not completely ruled out.
That being the medical evidence, it is necessary to closely examine the oral evidence relating to the type of gun used to shoot the victim. There is no evidence from David and Thomas as to the particular type of gun held by Taupin and Jim. Thomas did not aly see thee the fatal shot being fired by Taupin and the bullet landing on the right front side of the victim. But then itoo mu ask ThomaThomas or David both laymen, in the circumstances they were placed in at that that time to pinpoint, with maximum prec, the type of gun used by Paulin, the shot being fired and the pace at which the shot travetravelled and found its target. Thomas did the best he could. So didd. Paulin no d no doubt used a gun. He may have used a rifle or he may have used an ordinary shotgun.
I have referred to the evidence of the two prosecution witnesses’ failure to give evidence of the exacure atent of the gunshgunshot wound to her left side which claimclaimed her life. They have not beentioned oned on this by the defence counsel or even the State Prosecutor. The gunshot wound fromh shch she died appears to have been a foregone conclusion e minds of David and Thomas. I too tit is a fore foregooregone conclusion.
At the material time, the two accused were thmy tribesmen of the deceaseceased, David and Thomas. The fight betwee accused tsed tribe and the victim’s tribe was in progress. The two accused and others were armed with guns and on enemy territory. They had already kitwo trio tribesman.herefore, their undoubted pted purpose for being at the scene was shoot to kill. And they had the motive oo shoot to kill.
Thntification evidence against the two accused is very strongtrong. Itworn evidence. I r; I remind myof the dane dangers ofing on the identification evidence of these two witnesses ases as required of me in accordance with the principles in John Beng v Thee [19NGLR 115. A60; As I have said tevideevidence is of goof good quality. The two accused have notn iven any motive for David and Thomas giving false evidence against them in particular as opposed to their other tribesmen who no doubt were involved in the trfighting. As for the two accused, their evidence is unswornsworn. It cannot be given the same weight as the sworn evidence of the two prosecution witnesses: R v Phillips Boike Ulel [1973] PNGLR 254. Even then, their unswortemtatements contains broadgations of false accusation which do not match the quality lity of the identification evidence of the two prosecution witnesses.
e evidence of the shooting of the victim and as to the pres presence of the two accused at the scene armed with guns is clear and strong. The evidence of the celebration of the successful killing at the scene by the two accused and others, especially Paulin is also clear and very strong. The fatal shot was no doubt being fired by Paulin. I find that Paulin Taupin shot the victim with a gun, most probably a rifle, if not a shotgun. This finding is open on the medical evidence. Medical evidence is not -requisite for a convictionction. Iterely there to assist thst the Court in reaching its decision. is case, the medividence dnce does not totally exclude the use of a shotgun and leaves open the use of a rifle. Tle. There is no other hypothesis open as to thee of death of the victim before me except the gunshot firedfired by Paulin in common purpose with Jim. It is the only rational enference I can draw from the proven facts: State v Tom Morris [1981] PNGLR 493; Paulus Pawa v The State [1981] PNGLR 498.In all the circumstances, I am satisfied beyond reasonable doubt that Paulin Taupin shot the deceased with a gun and at the time he fired the shot, he intended to cause grievous bodily harm and that the deceased died from the gunshot injury she received to her body. I ao satisfied beyond reas reasonable doubt that Jim Kandamain acted in common purpose with Paulin Taupin: Code S. 8. I find them y of murder puer pursuant to S. 300 (1) (a) of Code.
L
Lawyer for the Accused: Paulus M Dowa
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