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Queen v Tigel-Giring [1962] PGSC 14 (8 October 1962)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

Coram: Ollenrenshaw J.
8^th October, 1962

THE QUEEN v. TIGEL-GIRING
AND IATIN-AIGAL

JUDGMENT

TRIAL AT RABAUL:
28^th September, 1^st, 2^nd, 3^rd, and 8^th
October, 1962.

The accused are charged under three counts; firstly, that they caused Umura-Wei to take a noxious thing, namely, hydrochloric acid, with intent to do some grievous bodily harm to him; secondly, that, unlawfully and with intent to injure him, they caused the same noxious thing to be taken by Umura and thereby endangered his life; and, thirdly, that, unlawfully and with intent to injure Umura, they caused noxious hydrochloric acid to be taken by him.

Mr. McKillop appears for the Crown and Mr. Rissen appears for both the accused persons.

Tigel was the native medical assistant, and Iatin the senior foreman at Lingalinga Plantation and Umura, the victim named in the charges, was one of the large number of Chimbu labourers employed there.

On or about the 20th February, 1962, Umura was sick and attended at the aid-post on the plantation, where Tigel was in charge.

Iatin was present there with Tigel and it is not, and could not be disputed that Umura was given a cup containing a fluid in circumstances in which both Tigel and Iatin, who had together taken part in preparing the contents of the cup, were responsible for such contents and the handing of the cup by one of them, in the presence of the other, to Umura to drink.

It is also not disputed and it could not be in doubt that Umura swallowed some of the liquid from the cup and quickly afterwards vomited, was in distress and called for water.

I am also satisfied that for some days thereafter Umura suffered pain and soreness in his throat from the effects of what he had swallowed and that he vomited some more after leaving the aid-post and returning to his living quarters.

About three or four weeks later he was seen by a doctor, who examined his throat and found a small ulcerated lesion on the upper pole of his right tonsil and a white patch of scar tissue of recent origin on the left front fold of his soft palate, surrounded by some inflammation. The doctor considered that these injuries were the result of the ingestion of an acid and were consistent with the swallowing of a solution of hydrochloric acid and water.

The Crown alleged that the liquid Umura was given by the accused was a mixture of hydrochloric acid and water, commercially sold as spirits of salts, which was poured into the cup in the medicine room of the aid-post from a white plastic bottle with a screw top. The Crown also alleged that Iatin had obtained this bottle from, and returned it to a cupboard in the workshop of the plantation, where usually it was kept for soldering purposes.

The case for the Crown was comprised of the oral evidence of Umura himself; Maribu, a junior foreman who was present at the aid-post when the mixture was prepared and given to Umura and saw its immediate effect upon him; Patrol Officer Batterham, who had some conversations with the accused after the incident; and Dr. Alpers, who also examined the contents of the bottle when it was handed to him some three or four weeks after the event. The Crown also put in evidence statements in writing made by each of the accused persons to Mr. Batterham and their statements made before the committing magistrate. Each of these statements is evidence only against the accused who made it.

Neither of the accused gave or called evidence or made a statement from the dock. However, in their written statements, which Mr. Batterham took, they claimed that what they had given Umura in the liquid in the cup was a village concoction, called by Iatin "cold oil", and, calculated to make a person drinking it submissive to orders but otherwise harmless.

The defence relied upon the onus upon the Crown to prove beyond all reasonable doubt, that what in fact had been administered to Umura was a dangerous and noxious solution of hydro-chloric acid.

From a sketchy beginning the facts upon which the Crown relied eventually emerged.

There were divergencies or discrepancies between the evidence of Umura and Maribu, but, this is not an unusual feature of native evidence and I have to consider whether, in all the circumstances, the case as a whole brings conviction to me.

These discrepancies were well within the bounds of rational explanation.

It is true that Maribu did not report what he had seen and heard until a week or more after the event, when he was angered by the discovery of Iatin in a compromising situation with his wife. However, his position is readily understandable. He was naturally curious about what was going on at the aid-post and made it his business to observe it, while at the same time not becoming involved in it. He was not only a "one-talk" of Iatin and Tigel, (the three of them were from the Islands of Siassi, situated off the coast of New Britain) but was also a foreman junior to Iatin, who was "boss-boy" over him.

I think that Iatin was having trouble with the Chimbu labourers, who come from the mountains of the mainland and who formed the bulk of the native workers on the plantation, and that he prevailed upon Tigel to assist him to do what they did.

From my observation during the trial and from the evidence it appears to me that Iatin is by far the strongest personality of the three and that, in his position, he exercised a measure of domination over the other two Siassis.

It is probable, upon the evidence, that he had a grudge against Umura personally and it is also very likely that he hoped that the visitation of an illness upon him, possibly a calamitous one but I am not sure of this, would have a chastening effect upon Umura's fellow Chimbus. If they came to think that Iatin was in some way responsible so much the better for discipline.

I do not attach any significance to the answer of Maribu in cross-examination in which he appeared to agree that he had made up the story. I know that some natives may be induced to withdraw a concocted story without a great deal of pressure and that sometimes, under pressure, they will even retract a story they know to be true. This answer came close to the beginning of the cross-examination without much effort at all from cross-examining counsel. It was not, as it should have been to give it weight in the circumstances, followed by any questions to ensure that there was not a mistake. On the contrary it was followed by many questions and answers in cross-examination and re-examination, which confirmed that Maribu did not "make-up" his story but "reported" his observations after his discovery of Iatin's attentions to his wife. Furthermore, each of the accused admitted in his statement before the committing magistrate that Maribu was present, as both he and Umura said he was, at an incident such as they all described. I have no doubt that this answer was due to misunderstanding or mistake.

Upon the oral evidence and the statements of the accused, made before the committing magistrate, as well as those taken by Mr. Batterham, I am satisfied to the requisite degree that what the accused gave to Umura was hydrochloric acid mixed with water and obtained by Iatin, as was known to Tigel, in the manner alleged.

I am also satisfied beyond all reasonable doubt that each of them knew that it was a dangerous substance to drink and intended that the mixture, which they administered, should do some harm to Umura.

"Grievous bodily harm" is defined in the Code to mean any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health and I am not satisfied, that is to say I am not satisfied beyond reasonable doubt, that they intended any of such results. I find it difficult to believe that Tigel would have lent his assistance in the execution of a plan designed to endanger the life if a patient or cause permanent injury to him. To some extent Iatin gets the benefit of my estimation of Tigel. He may have intended a result worse than Tigel contemplated, but, I cannot, in the circumstances, feel sure that either of them intended more than a temporary, although serious injury to Umura: they talked and acted together at all crucial stages in the medicine and patient's rooms at the aid-post.

The medical evidence is that the injuries which Umura did in fact suffer would not be likely to have any permanently detrimental effect on Umura's health and the Crown does not ask for a conviction upon the second count.

I therefore find, upon each of the first and second counts, a verdict of "not guilty" in each case.

Upon the third count I find verdicts: in the case of Tigel-Giring: Guilty; and, in the case of Iatin-Aigal: Guilty.