Kristeff v The Queen [1967–68] PNGLR 415

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Barwick CJ, Menzies J, Owen J
• Judgment Date: 05 September 1968
• Citation: [1967–68] PNGLR 415
• Judgment Number: No445A
• Year: 1968

Full Title: Kristeff v The Queen [1967–68] PNGLR 415

High Court: Barwick CJ, Menzies J, Owen J

Judgment Delivered: 5 September 1968

1 Criminal law—manslaughter; Criminal procedure; View

2 Retrial of R v Nicola Kristeff (1967) No445 ordered by High Court; accused must be given chance to rebut judge's opinion, from visits to shooting site, that evidence tampered with

CRIMINAL LAW—Evidence—View by trial judge—Limits of use.

At his trial before the Supreme Court for the wilful murder of a customer a storekeeper and his wife gave evidence that the deceased was one of a number of natives in the store in an excited and angry state, that the natives threatened to rape the wife and kill her, accused and their child, and that the deceased in an endeavour to attack them pushed open a wire gate in the cyclone wire netting which guarded the space between the top of the counter and the ceiling. Thereupon the accused, believing he and his family were in danger of being killed or grievously injured, fired shots which killed the deceased. The trial judge rejected the account given by the accused and his wife, one of the factors causing him to reject the evidence of the accused's wife being a belief that the wire gate had been tampered with in the interval between the two views of the premises which the judge had taken during the trial.

Held:

By the High Court that the trial judge had overstepped the limits of the use that may be made of a view by substituting for sworn evidence inferences which he had formed of the locus and as the defence had been given no opportunity of dealing by evidence or argument with the suggestion that there had been tampering with the gate for the purpose of advancing the case for the defence.

Scott v Numurkah Corporation (1954) 91 CLR 300, followed. Unsted v Unsted (1947) 47 SR (NSW) 495, referred to.

Decision of the Supreme Court of the Territory of Papua and New Guinea (Frost J), reversed.

Motion for Leave to Appeal.

Nickola Kristeff was indicted on a charge that on 28 May 1967, he wilfully murdered Pipulua Kewa. The Supreme Court of the Territory of Papua and New Guinea (Frost J) entered a verdict of manslaughter and awarded a sentence of imprisonment with hard labour for five years. He applied to the High Court of Australia for leave to appeal against his conviction and sentence.

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By the Court: On 15 September 1967, the applicant was indicted on a charge of having wilfully murdered one Pipilua Kewa on 28 May 1967. He pleaded not guilty and the trial, which lasted for many days, took place before Frost J, a judge of the Supreme Court of the Territory of Papua and New Guinea, sitting without a jury. On 29 September 1967, the learned judge, being of opinion that the Crown had failed to...