Awap Omowo and Warsa Yirihim v The State [1976] PNGLR 188

• Jurisdiction: Papua New Guinea
• Judge: Saldanha J:
• Judgment Date: 11 May 1976
• Citation: [1976] PNGLR 188
• Court: Supreme Court
• Year: 1976
• Judgement Number: SC96

Full Title: Awap Omowo and Warsa Yirihim v The State [1976] PNGLR 188

Supreme Court: Frost CJ, Williams J, Saldanha J

Judgment Delivered: 11 May 1976

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AWAP OMOWO

AND WARSA YIRIHIM

V

THE STATE

Waigani

Frost CJ Williams Saldanha JJ

30 April 1976

11 May 1976

CRIMINAL LAW — Parties to criminal offences — Acting in concert — Joint offenders — Unlawful killing — Unnecessary to decide which accused committed act causing death — Principles applicable — Criminal Code (Queensland adopted) s. 71, s. 293.

Section 7 of the Criminal Code (Queensland adopted) provides: "Principal Offenders. — 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 —

(a) Every person who actually does the act or makes the omission which constitutes the offence;

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

(c) Every person who aids another person in committing the offence;

(d) Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission. A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission."

Where two persons are jointly charged with unlawful killing, so long as the Court is satisfied that death was caused by the accused acting in concert, it is unnecessary to decide which accused committed the act which actually caused death.

The principle which is expressed in s. 7 of the Criminal Code (Queensland adopted) is that two persons participating in a crime are responsible for the acts of each other. Sirinjui-Biagwei v. The Queen (1962) 36 A.L.J.R. 9 at p. 11 and R. v. Lowery and King (No. 2), [1972] V.R. 560 followed.

Appeal

This was an appeal against convictions for manslaughter on joint charges of wilful murder where the appellants admitted that they intended to kill their infant child, that they planned to kill and that they did in fact kill the infant child and bury him. The only significant particular in which their statements differed was the manner in which they said the child was killed, one saying he had wrung it's neck, and the other saying they had both stamped upon it. The trial judge holding that he could not find a verdict of wilful murder, as against either accused, unless he was satisfied that death occurred directly as a result of some specific act committed by that accused, entered a verdict of guilty of manslaughter. The appellants appealed on the sole ground that the convictions were wrong in law having regard to certain of the trial judge's findings.

Counsel

C. F. Wall, for the appellants.

S. C. Cory and J. L. Cagney, for the respondent (the State).

Cur. adv. vult.

11 May 1976

FROST CJ: The appellants appeal against their conviction by the National Court sitting at Vanimo for the unlawful killing between 25th April and 3rd May, 1975, of the male child, Pori, aged approximately three months. It was Awap's child and she said Warsa was the father.

No submission was made that on the evidence it was not open for the court to have convicted the appellants of manslaughter, or indeed of wilful murder which was the charge contained in the indictment. The only ground of appeal was that the convictions were wrong in law having regard to certain findings of fact by the trial judge, which led him to acquit the appellants of wilful murder and inferentially of murder, and which it was submitted amounted to findings that neither of the appellants had caused the death of the deceased infant and so were inconsistent with the verdict of manslaughter.

The case was a simple one, and tragic. The only relevant independent evidence was confined to the fact of the death of the child, and did not extend to the nature of any injury inflicted upon his body. The State case depended on statements by each appellant in records of interview conducted by Senior Constable So'on. No evidence was called on behalf of the appellants. From these statements it appeared that after the birth of their child trouble arose between the appellants, for Warsa accused Awap of having prostituted herself, and claimed that the child was not his. Later the child suffered burns when he rolled upon the fire one night, and was taken to an aid post for treatment over several days by an orderly. On the family's return to their home, as each appellant admitted, they decided to murder the child and in fact did kill the child. This is supported by Awap's statement, "At about 6 p.m. that even date two of us came to our decision to murder the child. So we murdered him", and Warsa's statement, "My wie said, 'We better kill the child'. I agreed with her and said, 'that is alright we kill him' so we did". But each gave a different account as to the manner in which the child was killed. According to Awap the deed was done by Warsa wringing the child's neck whilst she held him on her lap, but Warsa said the child died as a result of Awap placing her foot on the child's neck, followed by him also stepping on it.

On this evidence it was clearly open for the trial judge to have found that a crime of unlawfully killing the child had been committed by the appellants as principals on the ground that each pursuant to a common design had aided the other in causing the death of the child — ss. 293 7 (c) of the Criminal Code (Queensland adopted). So long as the judge was satisfied that the death was caused by the appellants acting in concert it was unnecessary to decide which appellant had committed the act which actually caused his death. The principle which is expressed in s. 7 of the Code is that "two persons participating in a crime are responsible for the acts of another". Sirinjui-Biagwei v. The Queen (1962) 36 A.L.J.R. 9 at p. 11, per Dixon C.J. That principle has been lucidly explained in a case usefully cited by counsel for the State. In a charge to a jury Smith J. of the Victorian Supreme Court said:

"The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime." (R. v. Lowery and King (No. 2 [1972] V.R. 560).

The course taken by the trial judge in...