Regina v Wendo and Others [1963] PNGLR 217

• Jurisdiction: Papua New Guinea
• Judge: Ollerenshaw J
• Judgment Date: 14 August 1962
• Court: Supreme Court
• Citation: [1963] PNGLR 217
• Year: 1963
• Judgement Number: No248

Full Title: Regina v Wendo and Others [1963] PNGLR 217

Supreme Court: Ollerenshaw J

Judgment Delivered: 14 August 1962

1 Criminal law—murder, wilful; Criminal responsibility—common plan; Evidence—confessions; Customary law and ways—Morobe Province; Common law—evidence; Coroner

2 27 guilty of massacre at Kukukuku village; all participated or aided with knowledge of intention; accuseds' depositions from coroner's inquest admitted; voluntary; in custody, but that was a practical necessity; upheld by High Court[1963] PNGLR 242

CRIMINAL LAW—Wilful murder—Admissibility of depositions taken by Coroner from affirmed witnesses upon trial of those witnesses—Coroner also Assistant District Officer and Police Officer—Evidence illegally obtained—Unlawful custody Common Law powers of Coroner to apprehend witnesses—Confessions—Voluntariness—Standard of proof of voluntariness—Discretion to exclude admissible evidence—Assessment of native evidence—Identification by natives—Acceptance and rejection of parts of same deposition—Conduct as a guide to intention—Common purpose.—Coroners Act 1953–1957, s9, s10, s12, s21, s25, s26, s35A—Evidence and Discovery Act 1913–1957, s58, s65(1), s68—Oaths Act 1912–1960, s22(1)—Courts and Laws Adopting Act 1889–1951, s4—The Criminal Code, s7, s8.

A coroner conducting an inquest into the deaths of a number of inhabitants of Yaba Village in the Territory of Papua instructed native police constables to bring in as witnesses persons who seemed to have some knowledge of the deaths at Yaba. The coroner was also an Assistant District Officer and a commissioned officer of the Field Constabulary of the Royal Papua and New Guinea Constabulary and when giving instructions to the police constables he considered himself to be an officer of Police. One native police constable upon apprehending any prospective witness said:

"We are looking for people in connection with the killing at Yaba and I am taking you to the Kiap for questioning, depending on the result of the questioning you may be detained or you may be allowed to return to your villages. You should tell the Kiap if you went there or if you didn't go there. You should speak true."

It did not appear in evidence which of the witnesses were brought in by this police constable. Those who seemed strong and likely to break away were brought in handcuffed or with their wrists tied with rope. At the inquest each witness was informed of the nature of the inquiry, cautioned and affirmed. The affirmation was in words to this effect:

"You are before a Court, all your talk must be true, you cannot tell lies to the Court, if you do tell lies you will be punished by the Court."

Twenty–seven of the thirty–two accused who were subsequently indicted for the wilful murder of Maga of Yaba then made statements admitting they were members of a party which attacked and killed a number of inhabitants of Yaba, including Maga. At the trial the Crown tendered as evidence against each of the twenty–seven the deposition of his evidence taken by the coroner. The other evidence is referred to in the judgment.

Held:

That the depositions were admissible. None of the twenty–seven accused was at the time he made his statement to the Coroner an "accused person" within the meaning of S26 of the Coroners Act 1953–1957, and therefore the depositions were not illegally obtained. Even if the accused were in unlawful custody at the time their depositions would still be admissible.

There is no presumption that where a person has given evidence upon oath or affirmation before a tribunal legally constituted and empowered to take such evidence then this evidence was given voluntarily.

A confession is admissible only if the Crown proves that it was voluntarily made. The standard of proof of voluntariness of a confession is proof beyond reasonable doubt.

A tribunal in the Territory is not required by law to inform a witness that he has the right to refrain from answering questions, the answers to which may incriminate him. However, it is proper to so inform him. Answers to such questions given without warning and without objection are (if voluntarily made) admissible against him in a subsequent trial.

Held:

Further, that the depositions should not be excluded as a matter of discretion.

Held:

Also, that the circumstances proved by the oral evidence called by the Crown justified findings of guilty intention and common purpose from the conduct of the accused persons, that the admission in each deposition of some of the accused persons of being present at or near the scene should be accepted and the exculpatory portions of such depositions rejected, and that their criminal responsibility could be found in Subsections (a), (b) or (c) of s7 and, possibly s8 of the Queensland Criminal Code (Adopted).

The facts appear sufficiently from the judgment.

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Ollerenshaw J: The thirty–two accused persons are charged under s301 of the Code that in or about the month of June, 1961, in the Territory of Papua, they wilfully murdered Maga of Yaba village.

They are indicted together as permitted by s568(5) of the Code. No objection has been taken to this procedure and I see none.

The charge arises out of the massacre of twenty–seven men, women and children of the thirty–one inhabitants of the Kukukuku village of Yaba, which occurred early one morning in or about the month of June, 1961. The Crown alleges that Maga, the victim named in the charge, was one of the inhabitants who were killed in the massacre. [His Honour then described the Kukukuku people of Yaba and nearby villages and the physical environment in which they live. His Honour continued:]

It appears that when news of a massacre at Yaba reached Menyamya, the District Officer there sent out a small party of native constables of police under first class Constable Gaigo, who spoke the same language of the Kukukukus of the Hawabanga–Yaba region, to verify what had happened at Yaba. He saw the bodies from the massacre, interviewed the surviving Yabas and returned with his party to Menyamya. Thereupon a patrol left Menyamya on foot under an Assistant District Officer of the Department of Native Affairs and proceeded to Yaba. It included two other European officers of the Department, native constables of police and the interpreter, Auwatago.

At about the same time a patrol left Kerema on foot for Yaba. This patrol went under Arthur Thomas Carey, an Assistant District Officer stationed at Kerema. It included, doubtless, native constables of police and carriers.

In addition to being a senior officer of the Department of Native Affairs, Mr Carey was a Coroner, appointed as such under s5 of the Coroners Act 1953–1957. By virtue of his office in the Department he was also a commissioned officer of the Field Constabulary, as distinct from the Regular Constabulary, of the Royal Papua and New Guinea Constabulary, the Police Force of the Territory: See Royal Papua and New Guinea Constabulary Act No 14 of 1955, s6 and s10.

As a Coroner, Mr Carey had jurisdiction to investigate the deaths at Yaba and it was his duty so to do. It would seem to me, however, that the question whether or not he should leave his station and perform this duty would depend upon superior instructions.

At the same time, it would have become the duty of the District Officer at Kerema, as the senior officer of the Department here, to cause the massacre to be investigated with a view to the apprehension and trial of the perpetrators. This was so because there was no European member of the Regular Constabulary, that is a commissioned officer of the Police Force, in, or for that matter, near the Kerema Subdistrict.

Mr Carey left Kerema on the 18th August, 1961, with the intention, which he carried out, of holding a coronial enquiry into the deaths at Yaba in pursuance of his responsibility and powers under the Coroners Act, by s10 and s12 of which it is provided inter alia as follows:

"10(1) A Coroner has jurisdiction to enquire into the manner and cause of the death of a person who:

(a) is killed;

(2) Subject to this section, a Coroner shall forthwith enquire into the manner and cause of a death occuring under any of the circumstances referred to in the last preceding subsection."

"12. Where an inquest concerning the death of a person is held, the Coroner holding the inquest shall:

(a) examine on oath touching the death all persons whom he thinks fit to examine or who tender their evidence or whom, in the opinion of the Coroner, are able to give relevant evidence respecting the facts;

(b) after hearing the evidence, give his decision or finding and certify it in writing in the prescribed form, setting forth, so far as they have been proved, the following particulars:

(i) the identity of the deceased;

(ii) how, when and where the deceased...