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Umarum, Regina v [1969] PGSC 43; [1969-70] PNGLR 190 (14 March 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 190 - Regina v Umarum

[1969-70] PNGLR 190

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

UMARUM

Madang

Clarkson J

14 March 1970

CRIMINAL LAW - Aiding and abetting - Consent or acquiescence - Whether an offence under the section - �For the purpose of enabling or aiding another person� - The Criminal Code, s. 7.[ccxxxix]¹�

The accused, who was not present when A. and B. killed Y., was charged with the murder of Y. under The Criminal Code, s. 7(b). It was alleged that some months before A. and B. actually killed Y., A. approached the accused seeking his approval: it was alleged that the accused agreed, and that it was only as a result of such approval that the killing was permitted by custom. The evidence did not disclose that custom required the approval of the accused before the killing took place.

Held:

A mere consent or acquiescence does not amount to an encouragement, which is the minimum requirement for the operation of s. 7(b).

Semble:

If the evidence had established that A. and B. were by custom bound not to have killed if the accused had refused his consent, then a strong case would be made out for the application of s. 7(b), but mere prior knowledge of what is intended is in itself not sufficient to bring the accused within s. 7(b).

Criminal Trial.

An indictment was presented against Umarum charging him with the murder of Yuwarem. The accused was not at the scene of the alleged murder where the deceased was killed by two other persons, and the prosecution relied upon The Criminal Code, s. 7(b). The facts appear fully in the judgment.

Counsel:

Wilson, for the Crown.

Dillon, for the accused.

14 March 1970

CLARKSON J:� In this case the accused stands charged with the murder of one Yuwarem. In fact the accused was not at the scene when Yuwarem was killed by the men Asis and Bitimur, but the Crown case in brief is that approximately three months before the killing Asis visited the accused and spoke to him. The conversation was presumably in Karim and this must be remembered when one weighs at a criminal trial the words as they finally appear in English. The relevant words referred to by the Crown are that Asis said to the accused: �I have come only to seek your approval for me to kill this luluai� (referring to the deceased), and he said this after his account of the troubles which he said had arisen from the alleged activities and sorcery of the deceased. To this the accused replied: �Yes, you can kill him.�

The Crown case is that that conversation in effect is sufficient to bring the accused within the provisions of s. 7(b) of The Criminal Code which provide that when an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say:

N2>�(b)��� Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.�

The Crown case is that by custom Asis could not and would not kill without the accused�s assent and that the giving of the assent in these terms amounted to an enabling or aiding within the meaning of the provision to which I have referred.

I should say that if the evidence established that Asis was by custom bound not to have killed if the accused had refused his consent then I think a strong case would be made out for the application of the section. At the same time it is clear from the authorities that mere prior knowledge of what is intended is in itself not sufficient to bring the accused within the section. In considering the ruling which I am now asked to make it is of course necessary for me to deal with the application in the same way as I would if I were asked to withdraw a case from the jury if I were sitting with a jury.

Without recording the details I mention merely that the principles which govern me now are different from those which would govern a consideration of a submission by the defence that there should be no conviction after the defence had opened its case and had elected to call no evidence.

To my mind the evidence of the Crown falls short of establishing the proposition which it set out to prove. There are a number of difficulties to which I will refer at this stage only briefly; firstly, on the evidence of the patrol officer who took the statement there is the clear admission that there could have been a misunderstanding in interpretation and that the accused could have been referring to a wounding or attacking of the deceased rather than a killing. Additionally, there is, I think, no evidence of any custom which would oblige Asis to obtain the consent of the accused.

The evidence raised the possibility that the refusal of consent by the leader of one�s own village may deter any proceeding with the proposed plan, but of course the accused is, on the evidence, not the head or big man of Asis� village. As counsel for the defence has pointed out, what evidence there was of custom related to killings and not to attacks or mere woundings and if the doubt in translation is conceded then it is not certain that the Court has before it any relevant evidence of custom. Also it appears to me that there is no evidence before me that Asis himself or Bitimur was bound by the custom which has been referred to in evidence, nor is there I think sufficient evidence to show that they or either of them were acting pursuant to any custom which has been proved. For myself, having regard to the interpretation difficulties in the case and taking into account the general publicity and feeling relating to this case in the Simbai area, I think it would be quite reasonable to construe the conversation which took place as being nothing more than an announcement by Asis to the accused that he, Asis, intended or was contemplating doing something concerning the deceased, that he sought in effect an assurance from the accused that he had no objection to any such course being pursued, and the accused simply indicated that he did not.

A mere consent or acquiescence by the accused does not amount to an encouragement, which I think on the authorities is the minimum requirement for the operation of the subsection. Further, if the conversation is construed in the way I have suggested as a mere acquiescence in or acceptance of Asis� proposal�and as I have said I think that it is reasonable so to construe it�then I cannot see, with specific reference to s. 7(b) of the Code, how it can be said that a mere acquiescence given in this manner was given �for the purpose of� enabling Asis� attack on the deceased, nor do I think it is even open on the present facts to say that such acquiescence could be �for the purpose of� aiding such attack.

Further, although there appears to have been no expressed disclaimer by the accused of his acquiescence there was a delay of three months between the time of his conversation with Asis and the actual killing. During this time there was considerable discussion in the valley regarding the possible killing of the deceased and all this I think goes to decrease even further the possibility that Asis acted on anything said to him by the accused at this conversation some three months before the killing.

Expressed shortly, those are my reasons for reaching the decision I have that on the evidence as presented by the Crown the accused has no case to answer. Some of the matters which I have mentioned whilst relevant here would also become relevant if I had ruled the other way and the trial had proceeded and I had then been asked to deal with the case with the defence calling no evidence. I merely say that, even if I were wrong in ruling at this stage that there is no case to answer, I would have no hesitation in saying that at the later stage to which I have referred I would have held that the prosecution must fail.

I rule therefore that the accused has no case to answer. I return a verdict of Not Guilty and I order the discharge of the prisoner.

Ruling accordingly. Verdict of not guilty.

Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

[ccxxxix]Section 7 of The Criminal Code provides that: �When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say� . . . (b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence. . . .�