Regina v Mon and Debong [1965–66] PNGLR 42

• Jurisdiction: Papua New Guinea
• Judge: Smithers J
• Judgment Date: 23 May 1963
• Court: Supreme Court
• Judgement Number: No288

Full Title: Regina v Mon and Debong [1965–66] PNGLR 42

Supreme Court: Smithers J

Judgment Delivered: 23 May 1963

1 Criminal law—murder; Evidence—circumstantial re death; Evidence—confessions; Sorcery

2 Not guilty; reasonable doubts; no proof of death; confessions raised unanswered questions; possible blackmail, sorcery threat

CRIMINAL LAW—Murder—Identification of body—Proof of death—Whether confession alone sufficient evidence.

On a charge of murdering a person, no part of whose body could be identified, the only evidence to prove the charge consisted of the confession of the accused.

Held:

(1) Where the Crown has failed to identify a body as that of the deceased whom the accused are alleged to have murdered, the accused may, nevertheless, be found guilty of murder if confessions made by them are found by the court to be true. This is merely a question of satisfaction beyond reasonable doubt but the court must give full weight to possible hypotheses consistent with the person in question being alive and only after having dismissed them as unreasonable in the circumstances can the court arrive at a state of satisfaction beyond reasonable doubt.

(2) Where the evidence of guilt is substantially confessional only but the tribunal is satisfied as to the death of the person alleged to have been killed, the Court must in relation to the criminal conduct of the accused, to which he has confessed, give similar weight to hypotheses more or less reasonably consistent with the confession being untrue.

(3) When the court is dealing with native persons whose ways are frequently inscrutable, it is not for the court to reject hypotheses because they are not reasonable as applied to the white man.

(3) In the circumstances the evidence did not induce a degree of conviction of the guilt of the accused which excluded reasonable doubt.

Cases Cited:

A–G v Edwards [1935] IR 500; R v Horry [1952] NZLR 111; Re v Onofrejezyk [1955] 1 QB 338; R v Mackay (1935) 54 CLR 1; R v McDermott (1948) 76 CLR 501.

Trial on Indictment.

The facts are sufficiently stated in the judgment.

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Smithers J: In this case Mon and Debong are charged with the murder of one Kopom.

For practical purposes the evidence against them falls into two categories:

(a) the evidence of the witness Timba of circumstances surrounding the disappearance of Kopom;

(b) evidence of a confessional nature.

Timba has said that Kopom was known to him and lived at a place called Kwina, a more or less isolated spot some distance from the dwellings of most of other people of his community. Kopom's neighbour, Timba, was a "bossboi". That means that he was a person of some authority in the community, occupying a position more or less next in authority to the luluai. He was a channel of communication from the Administration officers to the members of his community.

Timba said that it was the custom of Kopom to work for the patrol officer on the roads on most Mondays. It seems that on one Monday he was at work and that he did not attend for work thereafter. Timba said that about four weeks after last seeing Kopom at work, he went to Kopom's house to make some enquiries about him. This would be about 17th or 18th December, 1962.

It seems that just before Timba went looking for Kopom the patrol officer wished to take a census of the local people, and as Timba put it, "Kopom was not there". Timba says that at Kopom's house he observed footprints apparently of two men which went from a position near Kopom's house to a creek some 30 feet away and then back again. He also says that he observed some marks between the lines of footprints and that these marks were such as he would expect to be made by something heavy being drawn along the ground.

Timba says he then searched further and found four bones some 200 yards downstream. These bones were partly in and partly out of the water and were caught on a small grassy patch protruding just above the water. He collected these bones. Four bones, said to be those collected by him, were put in evidence. Timba then went to the home of Mon. Timba showed the bones to Mon and told him he thought they were the bones of Kopom and asked Mon if he knew anything about them. Mon said no. Timba then told Mon that he thought nobody else but Mon had killed Kopom. Mon denied this.

According to Timba he saw Mon again the next morning and again put it to him that he had killed Kopom and on this occasion Mon said, "I killed the man". Timba said, "Who helped you do the thing?" Mon said "Debong".

Timba then took Mon to Tabibuga, the nearest police station. At Tabibuga, in the presence of Timba, Mon and Debong were interviewed through an interpreter by Yama, a native policeman. It is not clear how Debong happened to be present.

At this stage Mon and Debong were undoubtedly trembling violently and appeared to be in fear. Timba produced the bones and said to the two men, "Now you two can talk". Yama then gave a proper warning and Mon then said, "It is true that the both of us killed the man". Mon said, "We killed him in a half–completed house and we then threw him into a no–good place near a creek". When asked why he had done it, Mon said he was cross with this man "about" his wife. The whole party then went to the area of Kopom's house. Timba pointed out where he had found the bones. During this inspection Mon said, "My wife died and I had half an idea Kopom had poisoned her so I killed him". Later Mon said, "I was not able to kill him on my own so I got Debong to help me". Debong said, "It is true we did it, both of us". Mon produced an axe and said that it was the instrument he used to kill Kopom.

The prisoners then went to Mount Hagen, a considerable distance away, apparently by themselves. On 24th December, 1962, they walked into the office of the patrol officer, Mr Allen, and Mon told Mr Allen through an interpreter that he had killed a man because he had dug up his dead wife and was eating her. After a warning Mon and Debong made statements which were reduced to writing and admitted in evidence.

Mon said, "My wife died about two months ago and I buried her near Kopom's house. I buried her about four feet down, covered the grave with large posts and constructed a timber frame around the grave. Next day this man Kopom opened the grave and started to eat my dead wife, Punumi. He ate portions her arm and body. When I discovered this I sent Debong to go and hold Kopom; he did this and I killed him with my axe. That is all." Debong said, "Mon has told you what happened. I simply held Kopom firmly while Mon killed him by striking him on the neck with his tomahawk. I have nothing more to say."

Dr Ivinskis gave evidence that the bones were human bones, that they constituted the right femur, tibia and fibula of some one person, either male or female. The fourth bone was the radial bone of the right arm, probably of the same person. He said the bones were not scratched or marked in any way, that there were small pieces of tendon adhering to the ends of the bones and that they were not "old" bones. He thought that in water or out of water they would not have come from the skeleton to which they belonged in less than three months unless they had been subjected to some physical violence. He thought these bones were those of a person about two months deceased in January, 1963. The death of Mon's wife appears to have taken place in the latter part of October, 1962. Their appearance was consistent with the flesh having been removed from them by almost any means. There were no scratches or other marks. The doctor said he would not expect marks if the flesh had been removed by teeth, human or animal.

As a result of all the evidence about the bones, the Crown concedes that it is impossible to draw any inference as to the identity of the person of whose body the bones were once a part.

The bossboi, Timba, is a most unusual person. His demeanour and appearance differed greatly from that usually presented by natives of authority. Such persons usually display indications that they are persons of character and reliability. The more one thinks of Timba, the more he presents the characteristics of a mystery man, and a somewhat sinister one at that. Indeed of all the natives I have seen in or out of the witness box during my period in this Territory, this man comes closest to one's...