Regina v William Taupa ToVarula and Others [1973] PNGLR 140

• Jurisdiction: Papua New Guinea
• Judge: Minogue CJ
• Judgment Date: 20 June 1972
• Court: Supreme Court
• Citation: [1973] PNGLR 140
• Year: 1973
• Judgement Number: No711

Full Title: Regina v William Taupa ToVarula and Others [1973] PNGLR 140

Supreme Court: Minogue CJ

Judgment Delivered: 20 June 1972

1 Criminal law—murder, wilful; Criminal procedure—indictments; Sentence—deterrent; Sentence—factors; Customary law and ways—East New Britain Province; Criminal procedure—voir dire; Evidence—confessions; Evidence—admissibility; Land titles—East New Britain Province; Lawyers

2 7 had cases to answer in killing of District Commissioner in land dispute; 10 issues of procedure and evidence ruled on; ex–officio indictments; admissibility of confessions; identity of informants; sentences (not in PNGLR)—instigator, 14 years; actual killer, 11 years, 3 others who aided, 18 months to 2 years; extenuating circumstances in frustration over land claim; new lawyer in mid–trial

CRIMINAL LAW—Practice and procedure—Indictments—Signing and presentation of indictment—Ex officio indictment where nolle prosequi entered—The Criminal Code (Queensland adopted), s7, s560, s561.

An indictment may be signed by one properly appointed officer and presented to the Court by another properly appointed officer under s560 of The Criminal Code. The "Governor–in–Council" and the "Crown Law Officer" in that section refer to the Administrator–in–Council and the Secretary for Law respectively. S560 and s561 of The Criminal Code apply in New Guinea notwithstanding the provisions of the Criminal Procedure Act 1899 (Papua, adopted). R v Ebulya [1964] PNGLR 200 and R v Dwyer [1967–68] PNGLR 200 followed. (Ruling of 4 February 1972.)

The Crown may present an ex–officio indictment under s561 of The Criminal Code against a person committed for trial and previously indicted where a nolle prosequi has been entered against that previous indictment. R v Kent; Ex parte McIntosh (1970) 17 FLR 65, R v Webb [1960] Qd R 443, and R v Sutton [1938] St R Qd 285 considered. (Ruling of 7 February 1972.)

EVIDENCE—Criminal Law—Confessions—Admissibility—Judge may read confession to assist in assessing credibility.

When the admissibility of a confessional statement is challenged and the evidence is heard on the voire dire the Court may read the statement to assist in assessing the credibility of the accused and of his interviewer. (Ruling of 14 February 1972.)

EVIDENCE—Criminal Law—Confessions—Admissibility—Discretion to reject confession unfairly obtained—Onus of proving unfairness on accused.

The court may reject a confession made voluntarily on the basis that it was unfairly obtained. The onus of proving unfairness lies on the accused. In exercising its discretion the court must weigh its disapproval of improper police conduct against the public interest in seeing that all relevant evidence for and against the accused is before the court, McDermott v R (1948) 76 CLR 501 referred to. (Ruling of 18 February 1972.)

EVIDENCE—Criminal Law—Confessions—Admissibility—Numerous accused—Procedure for dealing with successive voire dires—Ruling on admissibility at conclusion of voire dire.

Counsel for the accused challenged the admissibility of a confession and in the course of the evidence heard on the voire dire attacked the credit of two police officers. He sought leave not to close his case on the voire dire until all voire dires in relation to other accused and involving the same police officers had been heard.

Held,

rejecting the submission, that a ruling on the admissibility of the confession would be given at the conclusion of the voire dire. If further evidence became available the ruling could be reconsidered. (Ruling of 1 March 1972.)

EVIDENCE—Criminal Law—Confessions—Admissibility—Imperative questioning—Exclusion of part of confession.

Part of a confession may be excluded if, as a result of an imperative question, the accused did not fully appreciate that he continued to have a free choice to speak or remain silent. (Ruling of 7 March 1972.)

EVIDENCE—Identity of informants—cross–examination of police officers as to identity of informants—When discretion to cross–examine to be exercised.

There is no absolute rule that a police officer cannot be cross–examined on the identity of his informants. The court has a discretion in the matter and will allow such cross–examination when the question of whether the police officer had reasonable grounds to make an arrest, is in issue. Marks v Beyfus (1890) 25 QBD 494 and R v Richardson (1863) 3 F & F 693 considered. (Ruling of 25 February 1972..)

EVIDENCE—Criminal Law—Confessions—Admissibility—Voire dire—cross–examination as to credit of police officers not relevant.

In the hearing of evidence on the voire dire on the admissibility of a confession, counsel for the accused sought to cross–examine a police officer to show that he had received but later ignored certain legal advice from the Crown during the course of his investigations.

Held,

that as the credit of the police officer was not in issue, the proposed cross–examination was irrelevant to the issues in dispute and would be disallowed. (Ruling of 9 March 1972.)

EVIDENCE—Criminal Law—Confessions—Admissibility—Voire dire—cross–examination of accused as to credit—Evidence Act 1934–1969 (New Guinea) s6(4).

When on the hearing of a voire dire to determine the admissibility of a confession, the credit of a Crown witness is attacked and the accused chooses to give evidence, he may be cross–examined as to credit under s6(4) Evidence Act 1934–1969 (New Guinea). R v Cowell (1940) 27 Cr App R 191; R v Baldwin (1931) 23 Cr App R 62; R v Hudson [1912] 2 KB 464; R v Cook [1959] 2 QB 340; R v Flynn [1961] 3 WLR 907; R v Selvey [1968] 2 WLR 1494; R v Dawson (1961) 106 CLR 1 and R v Mathews [1965] Qd R 306 considered. (Ruling of 12 April 1972.)

CRIMINAL LAW—Practice and procedure—Conduct of trial—New counsel engaged halfway through trial—Whether trial judge who has ruled on credibility on voire dires should discharge himself.

The trial should not be discontinued against an accused because he had engaged new counsel some three months after the trial began and that counsel found it difficult to know what had gone on already.

Where a judge rules on the admissibility of a confession he may have to express an opinion on the credibility of the accused who claims that his statement was not made voluntarily. But no expression of opinion on that matter should prevent the judge from making an open–minded determination of the credibility of the accused if his credibility should be in issue again later nor should it disqualify the judge from deciding the guilt or innocence of the accused. (Ruling of 3 May 1972)

CRIMINAL LAW—Offence—Parties to offence—Principals in first and second degree—Enabling or aiding another person to commit an offence—The Criminal Code (Queensland adopted) s7.

Although the terminology differs, s7 of The Criminal Code substantially reproduces the common law on principals in the first and second degree. A principal in the second degree is one who intentionally encourages the commission of a crime by word, action or by his mere presence. If presence at the commission of the crime is relied on, as distinct from any act or words of assistance, the presence must be willed not accidental and with the intention of encouraging or assisting the commission of the crime charged.

In some circumstances the fact that a person was voluntarily and purposely present at the commission of a crime and offered no opposition to it, although he might reasonably be expected to do so or at least to express his dissent, might afford cogent evidence that he wilfully encouraged the commission of the crime. R v Allan [1963] 3 WLR 677; R v Russell [1933] VR 59; R v Clarkson [1971] 1 WLR 1402; R v Howell (1839) 9 Car & P 437; R v Coney (1882) 8 QBD 534 and Surujpaul v R [1958] 1 WLR 1050 followed. (Ruling of 5 June 1972)

Trial.

William Taupa ToVarula and thirteen others were jointly indicted for the wilful murder of Errol John Emanuel at Kabaira plantation on the Gazelle Peninsula on 19 August 1971. Emanuel was then the District Commissioner for the East New Britain District. The trial against one of the accused, Alois...