The State v Nataemo Wanu [1977] PNGLR 152

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ
• Judgment Date: 25 May 1977
• Citation: [1977] PNGLR 152
• Court: National Court
• Year: 1977
• Judgement Number: N96

Full Title: The State v Nataemo Wanu [1977] PNGLR 152

National Court: Frost CJ

Judgment Delivered: 25 May 1977

1 Criminal law—wilful murder—applicability of common law rule requiring a warning that it is dangerous to act on the uncorroborated evidence of an accomplice—who is an accomplice within the meaning of the rule

CRIMINAL LAW—Evidence—Corroboration—Accomplices—Applicability of common law practice requiring warning that it is dangerous to act on the uncorroborated evidence of an accomplice—Who is an accomplice within the meaning of the rule—Wilful murder—Accomplice previously convicted as accessory after the fact—Rule applied.

EVIDENCE—Corroboration—Accomplices—Applicability of common law practice requiring warning that it is dangerous to act on the uncorroborated evidence of an accomplice—Who is an accomplice within the meaning of the rule.

The accused was charged with the wilful murder of one Siri Bena on a date unknown between 1st June and 30 June 1973. The murder was alleged to have been committed in an isolated corner of the Morobe District, and the State case depended on the testimony of a single witness, Toropen, who had been convicted in October 1976 of being an accessory after the fact to the murder. Toropen's evidence was to the effect that he and the accused and three others went to the hut where the deceased was sleeping, that they stood outside while one of the three others killed the deceased, that all five men then carried the body down to a river, packed the body with sand, built a raft and took the body out to sea where it was dumped overboard. This story was not uncovered until 1976, by which time two of the three others were dead and the third missing, leaving Toropen and the accused as the only participants.

Held:

(1) The witness cannot be held to be an accomplice within the common law rule as to obligatory warnings, unless chargeable as principal or accessory. An accomplice must be a person privy to the criminal intent of the accused and the common law rule as to obligatory warnings is limited accordingly.

McNee v Kay [1953] VLR 520 followed.

(2) It is for the Tribunal of fact to decide the question whether the witness is an accomplice.

Glanville Williams Corroboration—Accomplices [1962] Crim LR 588 referred to.

(3) Accordingly the Court was not bound by the judgment against Toropen upon the charge of being an accessory after the fact.

(4) The mere fact that the witness has already been convicted does not relieve the court from the necessity of giving the warning.

(5) On Toropen's evidence, the degree of participation by each of those involved in the incident being the same, the same criminal intent was to be inferred against each of them.

(6) Accordingly, the common law rule of practice requiring a jury to be warned that it is dangerous to act on the uncorroborated evidence of an accomplice, but that they are entitled to convict on the uncorroborated evidence if they think fit, was applicable in the circumstances (including the circumstance of Papua New Guinea in which the Tribunal of fact is not a jury).

McNee v Kay [1953] VLR 520 followed.

(7) On the evidence it would be dangerous to act on the uncorroborated evidence of Toropen as to whether the accused was a participant in the crime and there should accordingly be a verdict of not guilty.

Trial.

This was a trial of an accused on a charge of wilful murder, where the State case depended on the testimony of a single witness who had himself been convicted of being an accessory after the fact.

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Frost CJ: Trial upon indictment of the charge that the accused on a date unknown between 1st June and 30 June 1973, that is four years ago, wilfully murdered one Siri Bena.

The murder is alleged to have been committed in an isolated corner of the Morobe District, near the mouth of the Waria River. The State case depends on the testimony of a single witness, one Toropen Komburo, who was himself in October 1976 convicted of being an accessory after the fact to the murder and sentenced to 18 months' imprisonment. The deceased's widow, Norah, was also called but her evidence is really confined to filling in the background of the case.

Toropen's testimony reveals a crime of great treachery, ferocity in the way it was done, and deceit. Whether it should be accepted as proof beyond reasonable doubt that the accused was implicated is the real issue in this case.

The evidence establishes that in June 1973 the deceased, a short, plump but strong man, grey–haired and elderly, who ran a tradestore upstream at Pema village, was minded to convey some garden produce to Morobe for sale at the market. So, stacking the cargo on board a raft and taking with him his wife, a young son and a grandchild, he drifted the raft down the fast–flowing river to a village called Kobo near the mouth of the river. In his bilum he carried the funds from the trade store, consisting of notes and coins, about K200 in all. The journey took all Tuesday and they arrived at dusk. He had made arrangements in advance for the Morobe Council boat to be there on the Wednesday for the final stage of the carriage along the coast. Morobe, the Court was told, is six hours' journey by foot from the opposite side of the river to Kobo. The deceased had been to Kobo some years before to see relatives in the vicinity. Indeed, he spoke the same language as the Kobo people. He had planned to stay overnight with the pastor, but when on arrival he found the house locked and the pastor away the accused, who was a councillor, came forward and made arrangements for the deceased and his family to be put up at the village, a short distance from the river. The accused, who did not know the deceased, also helped bring up the deceased's produce to a safe place above the bank. The deceased's wife stayed with the accused's family in their haus meri, and the deceased, with certainly the elder child, spent the night in the haus boi.

Next morning the deceased was up at sunrise, and after awaking his family took them down to the river. The Council boat had not arrived as promised. They aroused Toropen, who was the ferryman employed by the Council. The deceased's plan was for his wife to cross the river and send the word to Morobe for the Council boat. Toropen said the entire family went across on the canoe and he brought back the deceased, who had decided to await the boat. Whether he went over, however, is doubtful because the widow said he stayed on the Kobo side of the river. Certainly it was the last time she saw her husband, and his body has never been found.

Toropen's evidence is that on Tuesday night he and the deceased slept in a house belonging to his brother–in–law, one Aso, and which was very close to the accused's house. After his return on Wednesday morning, the deceased spent the day in the village and slept again at Aso's house. Toropen's habit was to sleep in the haus boi, but to spend the day in the ferryman's hut by the bank of the river. It had no walls presumably because of the heat, and was fitted only with a narrow bed upon which the ferryman used to sit as he waited for travellers. Toropen next saw the deceased at dusk on Thursday as they passed on the path between the village and the ferryman's hut. The deceased was carrying "a fire" and also his bilum as he went towards the hut. They did not speak.

It was early on that night, at about 8 o'clock, that the deceased was murdered. Toropen said he was approached as he was eating his meal by three men, Doiemo, David and Ziama. In giving his evidence–in–chief, he said he was told that they planned to kill the deceased, and rob him of his money. Later he said that what was said was that they were off to the beach to catch crabs, and he replied he would join them later. It was at the river he said, and this was the account he had given earlier both in his record of interview with the police on 5th June, 1976 and also at the committal proceedings upon the...