Jaminyen–Urinjimbu v The Queen [1967–68] PNGLR 198; (1962) 36 ALJR 9

• Jurisdiction: Papua New Guinea
• Judge: Dixon CJ, McTiernan J, Owen J
• Judgment Date: 03 April 1962
• Judgement Number: Sirinjui
• Year: 1962
• Docket Number: Sirinjui–Biagwei v The Queen
• Citation: (1962) 36 ALJR 9 [118/1961]
• Court: High Court

Full Title: Sirinjui–Biagwei v The Queen; Jaminyen–Urinjimbu v The Queen [1967–68] PNGLR 198; (1962) 36 ALJR 9

High Court: Dixon CJ, McTiernan J, Owen J

Judgment Delivered: 3 April 1962

1 CRIMINAL LAW—Wilful murder—Common purpose—Eight spears discharged by two natives—Three mortal wounds by spears of either native—Causation—Criminal Code, s8

2 Complicity—Common purpose—Proof of Evidence—Eight spears discharged at New Guinea native by two other natives—Three mortal wounds—No common design.

S8 of the Criminal Code provides: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

Two New Guinea natives who were contemplating the killing of two natives in another village went to a river, with four spears each, to consult with Nami, another native, about joining them in the expedition. When they reached the river and saw Nami bathing one of the natives formed the idea of killing Nami and discharged his four spears at him, and Nami fell into the river. The other native also discharged his four spears. There was evidence that of the eight wounds inflicted three were likely to prove almost immediately fatal. There are many cases in New Guinea where a native will discharge a spear or arrow into a body already mortally wounded or dead so that he can claim the prestige of killing a man. On the trial of the two natives for murder the Supreme Court of Papua and New Guinea (Bignold J) applied s8 of the Criminal Code (Qld), as adopted in New Guinea, and convicted both. Held, that the application of s8 could not be supported, but although on the record the court could not be satisfied beyond reasonable doubt which of the two natives had inflicted any of the three wounds which were liable to prove fatal the case was not one in which either or both accused was entitled to an acquittal for lack of evidence and there must be a new trial.

J and S decided to join with N in killing R and W. As J and S approached N, J decided to kill N and threw four spears he was carrying into NS then also threw four spears into N who by that time was lying in water. N died as a result of some of the spear wounds, three of which would have proved fatal, but the evidence did not establish whether the spears of J or of S or of both caused his death. There are many cases in the Territory where a native man will discharge a spear or arrow into a body mortally wounded or dead so that he can claim by native custom the prestige of having killed a man.

Held:

That the trial judge, in convicting both J and S of the wilful murder of N, had misdirected himself in applying s8 of The Criminal Code, that leave to appeal should be granted and there should be a new trial, and that there was evidence upon which a jury, properly directed could have convicted one or both men.

Application for Leave to Appeal.

Jaminyen–Urinjimbu and Sirinjui–Biagwei applied to the High Court of Australia for leave to appeal from their conviction at Wewak on 8 November 1961, by the Supreme Court of the Territory of Papua and New Guinea (Bignold J) for the wilful murder of Nami. The evidence at their trial is sufficiently summarised hereafter.

[Editor's Note: For proceedings on the new trial see R v Jaminyen–Urinjimbu and Sirinjui–Biagwei (No 2) [1967–68] PNGLR 209.]

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By the Court: These are applications for leave to appeal from convictions for wilful murder followed by sentences of death recorded against two natives by the Supreme Court of Papua and New Guinea. The trials took place at Wewak before Mr Justice Bignold.

The two men were named respectively Jaminyen and Sirinjui. It appears that in response to certain native messages they decided...