Regina v Woroboi Dese [1974] PNGLR 23

• Jurisdiction: Papua New Guinea
• Judge: Frost ACJ, Kelly J, Raine J
• Judgment Date: 24 December 1971
• Citation: [1974] PNGLR 23
• Year: 1974
• Court: Supreme Court
• Judgement Number: FC28

Ful Title: Regina v Woroboi Dese [1974] PNGLR 23

Full Court: Frost ACJ, Kelly J, Raine J

Judgment Delivered: 24 December 1971

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

WOROBI DESE

Port Moresby

Frost ACJ Kelly Raine JJ

15 December 1971

24 December 1971

CRIMINAL LAW AND PROCEDURE — Appeal — Particular grounds — Verdict "unsafe or unsatisfactory" — Manslaughter — Self defence — Supreme Court (Full Court) Ordinance 1968, s. 28 (1)

Section 28 (1) of the Supreme Court (Full Court) Ordinance 1968 provides, inter alia, as follows: —

"Subject to subsection (2) of this section, on an appeal against a conviction the Full Court shall allow the appeal if it thinks that —

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;

and in any other case shall dismiss the appeal."1.

The appellant was charged with wilful murder. The trial judge found that the appellant killed the deceased by shooting an arrow at him from a bow but considered that the prosecution had not negatived provocation and so found the appellant guilty of manslaughter. The trial judge held that the defence of self-defence failed. On appeal against conviction, held, that because of the manner in which the trial was conducted and in particular the inadequacy of the factual material before the trial judge on vital matters and the extremely sketchy evidence as to the appellant's reasons for acting as he did, in the circumstances it was unsafe on material presented in the way in which it was to reach the positive conclusions which the trial judge did in order to negative the defence of self-defence and the appeal should be allowed and the verdict set aside pursuant to s. 28 (1) of the Supreme Court (Full Court) Ordinance, 1968.

R. v. Cooper (Sean) [1969] 1 Q.B. 267 followed.

The Queen v. Himson Mulas [1969-70] P. & N.G.L.R. 1 referred to.

Appeal

This was an appeal against a conviction for manslaughter and sentence of three years' imprisonment imposed. The facts are sufficiently set out in the judgment of the Full Court.

Counsel

P. Luke, for the appellant.

J. Greville Smith, for the respondent.

Cur. adv. vult.

24 December 1971

FROST ACJ KELLY RAINE JJ: The appellant appeals against his conviction for the manslaughter of one Sumagi Gosani. He also appeals against the sentence of three years' imprisonment on the ground that it is too severe. The appellant was charged with the wilful murder of Sumagi, but the learned trial judge, after finding that the appellant killed the deceased by shooting an arrow at him from a bow, considered that the prosecution had not negatived provocation, and accordingly acquitted the appellant of wilful murder and found him guilty of the lesser charge of manslaughter.

The crime occurred in the Nomad Sub-district which is an isolated area some 200 miles north of Daru in the Western District. It is a sufficient indication of the primitive nature of the people to note that they still practice cannibalism as is shown by the evidence as to the fate of the deceased's body. First contact with the Administration dates only from 1964.

The investigation was conducted by a patrol officer Mr. Fitz-patrick, who, speaking pidgin, was able to communicate with the witnesses through interpreters speaking the local language Gabusi. In the same way two interpreters were required at the trial to elicit the evidence.

The trial was a short one. There is really no conflict of evidence on the face of it; indeed, the accused, who gave evidence, was not cross-examined.

Put very shortly the facts are that earlier this year a man called Isira, a brother of the appellant who had been sleeping in his house, feeling ill, was lying in the sun. The deceased, Sumagi, was an inhabitant of the village. He was, it is generally agreed, a bit "queer in the head" or "long long". For no apparent reason Sumagi killed Isira with an axe. This was seen to happen by the appellant. Thus, in this primitive community, a highly dangerous and quite electric situation was created. In his statement to the patrol officer who investigated the matter, the appellant said that Sumagi who had been sitting inside the house with the appellant and some of his friends used the false pretext that there was no firewood to take his axe outside the appellant's house, where he used it to kill Isira.

In his statement to the patrol officer the appellant said "My friends ran away but I took my bow and arrow and said to Sumagi 'If you killed my brother now I am going to kill you'. I took the bow and arrow and shot Sumagi in the chest." Sumagi died as a result of this. At the end of this statement, which is a continuous narrative, the appellant said, "Sumagi was going to kill me with his axe so I killed him first".

In his sworn evidence the appellant, contrary to what he suggests in his statement, indicated that he was outside his house when he saw the deceased put Isira to death and the learned trial judge found as a fact that at that point of time the accused was standing some twenty feet from the house. He said that he got up, ran into the house, and there got his bow and arrows. He does not state whether he then left the house, but says "When I got inside the house and took my arrow I did not stop. I just came quickly and shot my arrow". He said that when he...